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Q: Do we have to require our employees who are being switched from exempt to non-exempt to take their lunch breaks if they prefer to eat while working?
A: Non-exempt employee lunch breaks are not affected by the new FLSA rules. The FLSA does not require private employers to provide rest periods for employees, so the answer is dependent on state law (see New York’s laws here). Often state-mandated meal periods can be waived if the employee would prefer to work through them, but a few states do not allow this practice. If your state does allow the meal period to be waived, it may require that the employee agree to it in writing. Whether or not the state requires this documentation, we strongly recommend it. The written agreement shows that any employees who skipped a meal period did so freely.
As long as you are within the bounds of state law, you are free to do whatever works best for your organization. For instance, if customers expect you to be open from 9:00 am to 5:30 pm, but employees are asking to work through (and thereby waive) their 30-minute lunch period so they can leave at 5:00 pm, there is nothing saying you must honor this request. But if it makes sense to let employees work through lunch so you can power down computers and turn off the lights 30 minutes earlier at the end of the day, you’re free to do that as well. Just make sure that you consistently apply your policies and that you document the legitimate business reasons when making any exceptions for a particular employee.
For more information and to learn how GTM keeps clients compliant with labor laws, contact us at (518) 373-4111.
