Can an Employer Take Your Lunch Break Out of Your Overtime?

Under federal law, your employer can make you work overtime with no advance notice.
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Employers who make employees to work through unpaid meal or rest breaks are violating the federal Fair Labor Standards Act (FLSA). But federal law doesn’t prohibit your employer from requiring you to work during paid breaks, which don’t generally include lunch periods. Your employer may also legally require you to work overtime. Some states and labor-union contracts have their own rules and restrictions on overtime and work breaks.


    The FLSA requires your employer to pay you overtime if you’re eligible and work more than 40 hours in a week. Overtime pay is one and a half times your regular base wage for every additional hour you work beyond you normal schedule. The rule sometimes varies for first-responders, such as police and fire fighters, or health-care workers in hospitals and nursing homes. Overtime pay rates for working weekends or nights are usually negotiated between employers and employees, or their union representative.


    Federal law doesn’t require employers to provide meal or rest breaks. Employers do so at their own discretion or as part of a union’s collective-bargaining agreement. Truck drivers and airline pilots have mandatory breaks to prevent fatigue. Rest breaks are factored into the sum of overtime hours worked and are therefore what the FLSA calls “compensable.” Meal breaks, such as lunch and dinner, have a different function from rest breaks in the workplace and aren’t compensable under the law. However, if you take longer breaks than you’re allowed, your employer doesn’t have to factor the extra time into overtime hours. Rest breaks usually range from five to 20 minutes and lunch or dinner breaks are from 30 minutes to an hour.


    Employees classified by the FLSA as "nonexempt” are eligible for overtime pay. Workers classified as “exempt” aren’t entitled to earn extra pay for additional work time. Professionals, executives, administrators and other “white-collar” workers are in this category, which also includes salespeople, newspaper deliverers and seamen. Exempts must earn at least $455 a week, perform managerial duties and make executive-level business decisions. They often need college degrees to do their jobs.


    States generally have their own overtime and break laws. You have the right as an employee to protection under whichever laws are the most stringent, state or federal. Your state's classifications for overtime might differ from those in FLSA. You could be nonexempt under your state’s law but exempt under federal law. California and states with similar laws require employers to pay eligible workers overtime if they work more than eight hours a day, not just more than 40 hours a week.

    Report overtime violations to the nearest regional office of the U.S. Department of Labor’s ( Wage and Hour Division or your state’s labor department. For questions, call the U.S. Department of Labor office at 317-232-2655 or your state’s labor department.

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