State Lunch and Break Law Governing Florida

Recently, I’ve been reviewing the laws related to lunches, breaks and other work hour issues. I think it is interesting to note that Florida does not have any laws on the books specifically related to this area, except those pertaining to minors. Florida law requires that minors under age 18 must be given an uninterrupted meal or rest period of at least 30 minutes for each four hours they have continuously worked.

Although Florida does not have a lunch and break law for those persons 18 and over, there are applicable federal rules for Florida citizens. While Federal Law does not mandate specific breaks or meal periods, it does give guidance as to whether or not an employee should be paid during these times. Short breaks are usually 20 minutes or less, and should be counted as hours worked. Genuine “meal periods” are usually 30 minutes or more, and do not need to be compensated as work time. For this to be the case, however, the worker must be completely relieved of his or her duties during the meal break. If the employee is still required to do any duties (even minor duties such as answering a phone), it can’t be considered a meal or lunch period and must be paid.

Federal law also contains other provisions related to employee pay during times of waiting, sleeping and traveling. Whether or not waiting time needs to be considered paid work hours depends on the situation. If an employee is allowed to do something of his or her choosing while waiting for another task to be finished or while waiting at the workplace for his or her services to be called upon, it is generally considered work time. On the other hand, if an employee is waiting to be called upon, but has great freedom to do what he or she wishes while on call (and has plenty of time to respond to the call), it is not generally considered paid work time.

When it comes to sleeping time, employees required to be on duty less than 24 hours is considered to be “working” even if he or she is permitted to sleep during some of those hours when not busy. If an employee is on duty more than 24 hours, a sleeping period of no more than eight hours may be deducted from work hours. However, this can only be done if sleeping quarters are provided and at least five hours of uninterrupted sleep may be achieved by the employee.

Finally, another issue I find comes up in the area of work hours is the issue of travel time. The general rule of thumb is that time spent in the normal day’s commute to and from work is not considered paid working time. However, if an employee is traveling in the course of a days work, it must be considered paid work time.

Complete information on the laws related to lunches, breaks and other pertinent labor issues can be found on the Florida Complete Labor Law Poster. This poster offers all the required postings for both federal and state labor laws.

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144 Thoughts on “State Lunch and Break Law Governing Florida”

Amelia

July 27, 2010 at 12:51 pm

Hi Rick! If your daughter works in Florida, your understanding is inaccurate. There is no federal or Florida law that requires an employer to give employees two 30 minute breaks when the employee works 7 to 8 hours. The Florida code says that the minor cannot be required to work more than 4 hours without a 30-minute uninterrupted meal break. In this case, your daughter is working 3 hours 55 minutes, taking a 30-minute break, and then working 3 hours and 35 minutes. This conforms with the law in every way.

If your daughter worked an additional 26 minutes, to 4:26, she would be entitled to an additional unpaid 30-minute meal break.

Of course, if you feel your daughter is overworked, or she is not able to work a 7.5 hour shift with a 30-minute lunch break, you can require that she find a part-time job with better hours. HTH, and thanks for reading the blogs!~Amelia
Read more about this at: http://www.myfloridalicense.com/dbpr/reg/childlabor/documents/childlaborposter0709.pdf

July 28, 2010 at 3:23 pm

I accepted a mid-night shift position in order to go full-time. However, I realized that I made a mistake because it’s been taking a physical toll on me (sleeping 4hrs daily for past 3wks). I expressed this to my supervisor and she told me that HR needed something in writing before they got to the point where all vacancies were full. There’s suppose to be two employees during this shift at all times and I worked for 4 days by myself until 3 or 4 in the morning. This past Thursday morning, 7-22-10 at 5am, it happened; my blood pressure went up to 173 over 100, my sugar dropped to 63, I turned pale, and was practically incoherent (I’ve never had pressure issues, nor am I a diabetic or suffer from hypoglycemia…..I think my body stressed out from lack of sleep.) I had to get a doctor’s note releasing me back to work ’til they run some test. In the meantime, my supervisor is telling me they are working on getting me back on days and to hang in there…….I think they can put me back on days now but she just does not want to be the one having to come in on the midnight shift. Where do I stand with this if something happens to me again?

Amelia

July 28, 2010 at 7:07 pm

Hi Ana! Unfortunately, there is no law that allows an employee to pick and choose which shift she will work. You accepted the night-time position, and the employer is not under any obligation to put your back on days, ever. If you are physically unable to work, then you may be entitled to unpaid time off, but not to be transferred to a daytime schedule.
You could quit, but you would not be entitled to unemployment benefits if you did.

Your employer is being more than fair by offering to put you on days when they can fill the nighttime position, if that is what they are offering. Be aware that if you give HR a note that says you can no longer work the night shift, basically you have quit your job. They have no obligation to offer you a shift that you would prefer. If you give HR anything in writing, our suggestion is that you simply express a preference to work a daytime shift when they have an opening. (Nor do they have to give you full-time work if you go back to days.)

It will be almost impossible for you to prove that your health problems are due to your schedule. The employer would argue that you are still working only 8 hours per day. If you choose to sleep less than 8 hours, and not eat at regular times, that is not the employer’s responsibility.

It is entirely reasonable for the employer to want to hire someone else to work the midnight shift before transferring you to days. (And it is not entirely clear to us that the employer has committed to moving you to days, ever.) Basically you agreed to work midnights, and now you are welshing on that agreement.

Many people do successfully adapt to working midnights. To do so, eat and sleep at the same times every day (even on your days off.) Try to make your bedroom completely dark during the hours you sleep, even if that is in the middle of the day. If necessary, take over-the-counter sleep aids like Tylenol PM until you establish a regular sleep pattern. Most night shift workers experience a slump between 2 am and 5 am. A snack or a beverage containing caffiene may help. Of course, it is easier to adapt to a midnight shift if you do not share living space with people who are on daytime work or school schedule. The only thing you can really do is to try some of these tips until the employer is able to switch you to a daytime shift, if they are willing to do so.HTH, and thanks for reading the blogs!~ Amelia

Patrick

August 10, 2010 at 1:21 am

Hi Amelia

Let me start by saying that you are doing a wonderful job here, and I certainly do appreciate it a lot.

I work for a sales call center in florida where we get a high volume of calls on a daily basis. Due to that fact the managers deny us our breaks and lunches all the time. Me personnally I’m never able to take a lunch break until 6 to 7 hrs into my shift with a paid 15 min break usually 4 hrs after i start. I was wondering that if there aren’t any laws that prevent the employer to deny the workers a lunch break after a certain amount of time working an 8 hour shift

Amelia

August 10, 2010 at 7:07 am

Hi Patrick! Thanks for the kind words — we are happy to help.

Unfortunately the working conditions you describe are legal in Florida. Nineteen U.S. states have break laws that would require a meal break for employees, but Florida does not. An employee could actually be required to work 12 hours without a meal break in Florida. OSHA worker safety regulations require that you be allowed to use the bathroom when nature calls, and that’s about it.

The working conditions at many call centers are deplorable, and if they continue, eventually they will probably be regulated by federal law. HTH, and thanks for reading the blogs!~ Amelia

Jimmy

August 15, 2010 at 8:38 pm

I am inquiring for another source so as to stay neutral. The question is, In Florida is there a lenght of time or an amount of hours by law in between shifts? As in work midnight to 6 am and be due back at 2 pm the same afternoon to work another 6 to 8 hour shift?

Thanks

Amelia

August 16, 2010 at 7:41 am

Hi Jimmy! No. Like most states, Florida does not regulate the time between shifts. It would be entirely legal for the employee to get off at 6 am and have to return to work at 2 pm, regardless of the length of the shift. In fact, it would be legal for the employer to have the Florida employee work a 12-hour shift ending at 6 am and then begin another 12-hour shift at 9 am.
The only limitation that is put on this is that under federal law, the employee must be paid overtime when working more than 40 hours in the payroll week. HTH, and thanks for reading the blogs!~ Amelia

Helen

October 5, 2010 at 7:22 pm

I live in Florida and the mgr. of the store made up a form for us to sign stating that we are not to leave the store durning our half hour off the clock. We are supposed to bring our lunch and eat in the stores stockroom.
Since we are off the clock I believe it to be my time and I can go get my lunch and bring it back or stay and eat out as long as I get back within the half hour. Am I right?

Amelia

October 5, 2010 at 8:33 pm

Hi Helen! Unfortunately, no, you are not correct. In almost any state, the employer can require that employees remain on the premises during an unpaid meal break. This is actually a fairly common policy in many industries. The employer can discipline or terminate any employee who does not comply. HTH, and thanks for reading the blogs!~ Amelia

Helen

October 6, 2010 at 9:21 am

I live in Florida and it is my understanding that if you are called in to work that you are to be paid no less then 3 hours. If they have you clock out under 3 hours they must pay you for 3 hours. Is this correct?

Amelia

October 6, 2010 at 10:14 am

Hi Helen! No, there is no such law in Florida. Nor does federal law address this issue. An employee could be called in to work a shift, on the clock for 5 minutes, and then sent home. The employee would be entitled only to payment for 5 minutes.

Employment laws vary a great deal by state. Several states including Pennsylvania and California have “reporting pay” laws that entitle an employee to a minimum number of hours per shift. Florida does not. In fact, Florida offers very few protections for workers, compared to other states. If you are a recent transplant to Florida, most of what you “know” about working conditions no longer applies.

There are a lot of issues in employment law, so feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia

trevor

October 6, 2010 at 12:09 pm

Hi. Ok at my work I am scheduled at 8 a.m is it legal for me to go to work at the scheduled time be told to wait in the break room until we get busy without being paid? I could be at work my work place for 10 hours and only end up working for 3.

Amelia

October 6, 2010 at 3:57 pm

Hi trevor! No, this is completely illegal under both the federal and Florida minimum wage laws. By law, an employee must be paid for all the time he or she works. If the employee is required to wait on the premises for work, that time counts as working. You should file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia

Mike

October 28, 2010 at 5:00 pm

My wife’s employer recently instituted a requirement that she take a two-hour unpaid lunch break to save on labor hours. However, during the two-hour unpaid time she is not allowed to leave the building so that if her employer needs her to return to work at anytime during her lunch, she will be immediately available (she works at a veterinary clinic). I understand that according to Title 29, Subpart C, 785.19, paragraph (b), that it is not necessary that the employee be permitted to leave the premises. However, since the purpose of her employer not allowing her to leave the building is so that they can have her return to work at anytime during that period, doesn’t 785.17, On-call time apply? She is “on-call” during her unpaid meal break so shouldn’t she be paid for her entire lunch time, or be allowed to leave the building? These two sub-sections seem to contradict one another.

Amelia

October 29, 2010 at 8:08 am

Hi Mike! Yes, we agree with you that this is waiting time (time the employee is required to spend on the premises, waiting for work to be available) and that your wife should be paid for it. The two sub-sections are not really in conflict. An employee who is completely relieved of all duties during a meal break need not be paid, even if the employee cannot leave the premises. However, if your wife is regularly interrupted during this “meal break” to perform work, then she is not really on a meal break — this is unpaid waiting time.

The employer’s motives really are irrelevant. If your wife was interrupted during this break once per month or less, then it would genuinely be a meal break. But if she is interrupted every day or almost every day for a few minutes, then she is not on break (or she must be paid for this break.)

The only flaw we find in your reasoning is that you want to make sure the vet is covered by the laws you cite, specifically the federal FLSA or Fair Labor Standards Act. That law applies to employers with revenue of more than $500,000 per year, or to employees who engage in interstate commerce. Some employees of vets in Florida will be covered, some will not. This is a complex issue so feel free to post any additional questions you might have. HTH, and thanks for reading the blogs!~ Amelia

Mike

November 1, 2010 at 2:51 pm

Amelia, thank you for your reply. Since posting this question I have been doing quite a bit of reading and research on this subject. It appears to me that in all of the court decisions, and opinion letters from the DOL, the employers’ motives in having the employee remain on the premises during unpaid meal time is directly relevant to how the cases were decided.

In all of the cases where the employer was allowed to require the employee to remain on the premises during unpaid meal time, the justification was either of a safety/security or practicality reasoning. Such cases included a crewman aboard a ship at sea (obviously impractical for the employee to leave the “work premises”), and cases where the employee worked an overnight shift at a warehouse whose main gate was locked during the overnight hours, or the employee worked in a cash counting room where the in & out traffic of employees leaving and returning from lunch created a security risk. In each of these cases the employee was completely freed from duties, and were not “on-call”.

A case where 785.17 was defined was Armour & Co. v. Wantock, 323 U.S. 126 (1944), where the employees were “engaged to wait”. This appears to me to clearly be the situation that my wife is in. Her employer is requiring her to remain on company premises until work is available, thereby she is being engaged to wait. The U.S. Supreme Court case did not make any distinction in how often the employee was called to work during the wait time, but rather that time while the employee was on-call was to be paid time.

Amelia

November 1, 2010 at 4:34 pm

Hi again Mike! We can only tell you that in practical terms, the U.S. Department of Labor has repeatedly refused to bring a case against an employer who required workers to remain on the premises during a meal break. For example, in a hotel the desk clerk or housekeeper can be given an unpaid break and not allowed to leave the premises. In a restaurant, the chef or waitress can be given an unpaid meal break and not allowed to leave the premises. Office workers are routinely not allowed to leave the premises during a meal break. If they are relieved of duties and never or very seldom called back to work during the middle of the break, the DOL has consistently ruled that the employees are not entitled to payment.

Your wife’s situation becomes more problematic because of the 2-hour length of the meal break. Some states such as California limit the maximum length of the meal break and consider anything more than an hour waiting time. Florida has no such law, and there is no clear-cut distinction under federal law. If your wife was being required to take a 4-hour meal break, we would say that was obviously waiting time and should be paid. If she was sometimes called back to work after an hour, sometimes after 45 minutes and sometimes after 1.5 hours, we would concur that she was being engaged to wait. However, if the meal break is always 2 hours, we think the employer can make a very good case that this is merely a long lunch hour and should legitimately be unpaid.

One of the reasons you are finding little case law is because the DOL usually prosecutes only the most flagrant cases. Be careful about basing your conclusions on just a few lawsuits. Often, those cases involve specific circumstances that are different from your wife’s case, like being on a boat.

Armour & Co. v Wantock is a completely different situation. The employees were required to sit around, often for days or weeks at a time, before being put to work to respond to a fire alarm. They were never given a specific starting and ending time for the break in advance. Then, the company decided it didn’t want to pay them for this time, because they were not actively working. The comparison we would draw would be to a receptionist who must reamain at the front desk, alert and ready in case the phone rings or a customer comes in. Obviously, this is very different from your wife’s situation, where presumably she can read a book or do her nails because she is on a meal break.

To cite another example, a bike messenger required to remain on company premises for several hours idly waiting for an assignment must be paid for that time. He may be called upon at any instant to spring into duty. But if the messenger is told at 9 am to take a meal break until 10 am, and is never or seldom interrupted during that time, he is not entitled to payment for that time — even if he must remain on the premises during that break.

However, we’ll never say never about the American judicial system. One of the things that makes this a great country is that a slick lawyer can often get a ruling that seems contrary to precedent and even common sense. Clearly you have done your research and you feel you have a strong case. By all means, contact the U.S. Department of Labor at http://www.dol.gov or hire an attorney to pursue this complaint. HTH, and thanks for reading the blogs!~ Amelia

Read more about this at: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.44&idno=29#29:3.1.1.2.44.3.436.10

Mike

November 4, 2010 at 12:56 pm

Decision by DOL

I received a phone call today from the local DOL office. After reviewing the facts as I presented them in a fax to their office last week, the DOL agent’s opinion was that my wife’s employer is NOT allowed to require employees to remain on the premises during extended meal breaks. The agent stated that this extended meal break constitutes a “split-shift” and not a legitimate meal break. The agent went on to say that since my wife is on-call during this 2-hour meal break, and therefore cannot use the time effectively for her own purposes, she is “being engaged to wait” (785.17), and therefore should be paid for this time. In addition, the DOL agent went on to say that if the DOL allowed her employer to institute a 2-hour unpaid meal break during which time she was required to remain on the premises, then where would they draw the line, 3 hours, 4, 8? The DOL considers a 30-minute meal break sufficient, 1-hour acceptable, anything longer than 1-hour would be considered excessive.

The agent inquired if my wife would like to file a complaint with the DOL, in which case, based upon the agent’s opinion, would be decided in-favor of my wife. Before pursuing this option, my wife intends to speak with her employer and then if her employer insists on continuing the policy, filing a complaint. I suppose another option might be that she tolerate the policy until such time as she finds other employment, then file a complaint for back-pay for the hours she was forced to remain on the premises during these excessive meal breaks.

Any opinions? Florida, being an “at-will” employment state, if my wife files a complaint, or says anything to her employer regarding this issue, they could just fire her. On the other hand, if she does not say anything, or does not file a complaint immediately, does she weaken her case for back-pay when she leaves?

Amelia

November 4, 2010 at 3:24 pm

Hi Mike! Thanks for keeping us in the loop. We are glad that this is working out for your wife! It is true that Florida, like most states, uses the “employment at will” doctrine, but there are significant limits to it under state and federal law. (For example, a new owner cannot use “employment at will” to fire all African American employees, because that would be illegal discrimination based on race.)

Under the federal FLSA, it is illegal for an employer to retaliate against an employee who files a wage complaint with the DOL in good faith. Even if the wage complaint is later found to have no basis, the employer cannot take negative action against an employee for filing the complaint. (The exception is if an employee intended to commit fraud in filing the complaint, but that does not apply to your wife.) So there is really no downside to your wife filing a wage complaint. The DOL will investigate, and if they find she is owed back wages, force the employer to pay them. Many employers voluntarily pay the back wages once the DOL becomes involved.

If the employer were to take negative action against your wife after the wage complaint, she could file an additional, separate complaint of retaliation. The employer could be required to reinstate her to her job, and pay back wages and penalties. Only a very irrational, arrogant or dumb employer would retaliate against an employee for filing a wage complaint. Ironically, filing a wage complaint provides greater protection against retaliation than simply discussing the matter with the employer.

Delaying the complaint does not weaken your wife’s case, but there is a statute of limitations. Be aware that it can take a year or so for a case to wind its way through the DOL, and they can only collect back wages for 2 years from the time they file a lawsuit in most cases. So your wife may lose any back pay for incidents that happened more than a year ago, if she does not file a wage complaint immediately.

Whether to file a complaint now or wait is a judgment call. The best we can do is discuss the different options, and let you make a decision.

If your wife needs her job and is worried about the consequences of having a discussion with her employer, we would recommend that she file a wage complaint. If she wants to find a different job anyway, it may make more sense to do so before she files the complaint. Usually we recommend that when the employer is a reasonable person, the employee sit down with him and have a calm, tactful discussion of the situation before filing a wage complaint. But this may make retaliation more difficult to prove, and only your wife knows if this employer is a reasonable person.

If the employer is a small business, it is also possible that they will genuinely determine that they cannot afford to employ her if they must pay her an additional hour or two per day. In that case they could eliminate her position, and this would not be retaliation — it would be a genuine business decision. Your wife might qualify for unemployment benefits, if that happened. If this is too big a risk to take, then it might be wise for her to find another job before filing the complaint.

Whatever you decide to do, keep us posted and best of luck! HTH, and thanks for reading the blogs!~Amelia

Melissa

January 7, 2011 at 7:52 pm

My question is pretty simple, my employeer knowing does not allow me to take any lunch breaks. I get in to work at 7am and dont normally leave until about 340pm. I really can’t take it anymore they are really abusing me, I work at a hotel and am the only one there standing for 8 hours, and with guest all the time 30 breather is not useful i need it. I work in Florida is this against the law?

Amelia

January 7, 2011 at 8:47 pm

Hi Melissa! Unfortunately, this is not against the law in Florida. There is no federal law that an employer must give meal breaks to employees in general industry. Nineteen U.S. states have laws that require meal breaks for almost all workers. Florida does not. Sadly, these working conditions are legal in Florida. The only suggestion we can really offer is that you look for a better job. There are some hotels that offer meal breaks to workers, or you could consider another industry. HTH, and thanks for reading the blogs!~ Amelia

mary

January 26, 2011 at 1:05 am

I think I know the answer but asking anyway..I work in a private hair salon full-time 40 hours per week. I am a W2 employee. I get paid by commission at 50%. Many days, there are 3 or 4 of us sitting around doing nothing except clean the salon etc until walk-in clients come in or our scheduled clients come in. There are days when we sit all day with not one client. However, we are REQUIRED to stay for the entire shift without being allowed to leave due to lack of business. We do not get paid for these hours. We only get paid 50% of whatever business we’ve done that week. In other words, we are required to be there 40 hours but many times I have had a $150.00 paycheck for the week (slow week). I do not think the salon has $500,000 in yearly revenue. Should they be paying us minimum wage?

Amelia

January 26, 2011 at 7:38 am

Hi mary! Yes, you are probably entitled to minimum wage for the time that you are required to sit around waiting for work. The federal FLSA or Fair Labor Standards Act applies to employees engaged in interstate commerce. If you accept credit cards for payment, or sell products made in other states, you are probably covered by that law. Our recommendation is that you file a wage complaint with the U.S. Department of Labor at http://www.dol.gov. They will investigate and force the employer to pay any wages you are owed. It is illegal for an employer to retaliate against an employee who files a wage complaint in good faith. HTH, and thanks for reading the blogs!~Amelia

Nellie

February 22, 2011 at 12:21 pm

Hello,

I am a parent of two kids, who were enrolled in a public school in Florida and one thing that I had problem with was the obvious failure of the Elementary School to provide the kids with adequate time for lunch break!
Under Fl law “minors should be provided with at least 30min of uninterrupted lunch break after 4h. of study/work”. What exactly is “uninterrupted” according to this law??
Our school has the following routine and please tell me if and how could this be tolerated by the present administration?
I observed only first grade, but I am sure it is the same with all grades. At 12 o’clock the kids are at the classroom door with teachers helping them get in line, get quiet, grab their lunch boxes, etc. By the time they reach the actual cafeteria lunch line it is a good 12:08-12:10. Kids wait for about 10-12min. (the group is 28kids and only few bring lunch).
The trash is picked up by a janitor with a huge trash can at EXACTLY 12:25, going from table to table. Almost all kids throw away a big amount of their unfinished lunches… We had unpleasant occasions when my son, 6y. old, was left totally HUNGRY because of the long line and the janitor coming a bit earlier(who doesn’t speak or understand English well, if at all).
So, kids have 5-10 min. to eat…. Teachers have only 20min.
While kids are eating the administration has decided to turn on their TVs on with some cartoons, to “keep them quiet”, which is actually backfiring because kids now are more interested in watching cartoons than in eating lunch!
After lunch kids play outside for 25min. IF it is not raining. If it rains they go back to their classrooms!! The “poor” county budget can not support the building of a covered gym…
I suggested to the administration that kids leave 10-15min earlier their classrooms, to which the principal answered that we might as well call it “brunch” then. It is a well known fact, though, that the Kindergartners eat lunch at 10:30am!
There are other inconsistencies with the kind of food that is being served there, but that’s a different issue.
Any help?

Amelia

February 22, 2011 at 1:08 pm

Hi Nellie! You bring up an important point, but unfortunately there is no Florida law that covers this. We do not know where you got the quote that “minors should be provided with at least 30 min of uninterrupted lunch break after the 4th hour of study/work” but it is not from this site. The article above applies only to the Florida child labor laws, which cover young people between the ages of 14 and 18, who are in paid employment.

We are not aware of any Florida law that regulates the length of the lunch period in the school day — but then, that is not our area of expertise. In many states, there are laws that regulate the number of hours that the children must spend in classes each day. So it’s possible that in order to make the lunch break longer, the school disctrict would also have to make the school day longer.

As a parent, you have a valid concern. It may be that improving efficiency in the lunch line, or having the janitor wait a few more minutes before picking up the trash, or both, would give youngsters enough time to eat. Or, there may be other solutions you could suggest. Yur best bet is to discuss your concerns with other parents and reach a group consensus. The principal is less likely to dismiss your concerns if they are shared by a number of parents. If the principal is not able to help, your group should go to a school board meeting and voice your concerns that the children do not have enough time to eat their meal, and that most of the food is being thrown away. You could invite the principal or school board to accompany you and several other parents to lunch, get in the back of the line and see if they can consume a meal in the designated time period. HTH, and thanks for reading the blogs!~ Amelia

DeShawn Williams

March 8, 2011 at 4:45 pm

I work in Florida at a retail store that states”any employee working 4 or more hours are entitled to a 30 minute break”, but that isn’t the case. Anytime I work with this one particular assistant manager she denies me of my break. Just recently we had a problem with this. I went in to work at 9am with another co worker to open the store and was scheduled to leave at 3pm. This particular assistant manager came in at 3pm and told the co worker that opened with me to go on a 30 minute break and when she returned she (the assistant manager) was going on her break and that I could clock out when she returned. Now that leaves me to clock out at 4pm. So I stated to her that I’m suppose to take a break too and she said the manager said that I wasn’t to take one. I then said to her, “according to our Employee Handbook, I’m entitled to a break and the law of DOTS says that I’m entitled to one. I asked her if I could use the phone to call the manager and she said she didn’t mind. Long story short the manager didn’t want to speak with me and told me I was being disrespectful to her because I said what the law stated. So now i’m not on the schedule like how I previously was. This happened 2 weeks ago and I was subsequently taken off the schedule last week and put on the schedule for 2 on calls and 1 actual day to work from 6 to 9:30 but the manager states that there isn’t anything wrong. The manager also said that she was having a meeting between us and when I get there, no meeting. I asked her if we could have the meeting because there was tension and she stated we didn’t need too.

Another thing is, this same assistant manager has pulled down her pants inside of the store showing her bare bottom to me stating that I’m jealous of her. She has also pulled her dress to her frontal private parts asking me to look, saying that it’s too swole for her that something may be wrong with it. Once I was squatting reaching for something and she pushed my head with her backside as if that’s a way to joke. last but not least, she is always making derrogatory comments towards black people.

So my questions are: Is it disrepectful for me to say what the law implies after discussing the problem with my lunch break? Is the assistant manager sexually harrassing me? is there a law aginst retaliation?

Amelia

March 8, 2011 at 6:23 pm

Hi DeShawn! The assistant manager’s conduct is probably illegal discrimination and sexual harassment.

First, we will say that you probably could have handled the break situation better. You should have simply done what the assistant manager requested, and then tactfully complained to the general manager on your next shift. It is not really appropriate to phone your general manager at home, unless somebody is bleeding or the store is on fire.

Also be careful that you are tactful and respectful to both the general manager and the assistant manager at all times. You have some valid complaints, but you can still be fired at any time if you become loud or disrespectful in demanding your rights.

We are not sure what “law” you are speaking of. There is no Florida law that requires an employer to give meal breaks to employees in retail stores or general industry.

When the assistant manager shows you her butt or her private parts, that is completely inappropriate. It may also be sexual harassment. So is bumping you with her butt.

Making negative remarks about African Americans is illegal discrimination based on race or color. If employees of other races are being given meal breaks, and you are not, that is also illegal discrimination based on race. You are correct that it is illegal for the employer to retaliate against you when you tactfully, respectfully raise these matters.

Since you have already discussed these matters with the general manager, you need to take your complaint up the chain of command. Many retail chains have a toll-free Human Resources hotline for employees. You should phone that hotline and calmly, respectfully discuss the issues of illegal discrimination, sexual harassment, retaliation and not being given breaks. If the chain has no corporate or regional HR department, you should phone the regional manager and discuss this with him or her.

If the problem is not addressed within a few days, you should file complaints of illegal race discrimination and sexual harassment with the federal EEOC at http://www.eeoc.gov. (They cannot do anything about you not being given breaks, because there is no Florida or federal law that requires them.) The EEOC will investigate and if they determine that discrimination or sexual harassment has taken place, they will sue the employer for you if necessary. The employer cannot retaliate against you for filing a complaint with the EEOC. HTH, and thanks for reading the blogs!~ Amelia

Deshawn Williams

March 10, 2011 at 4:36 pm

Hi Amelia, in my previous blog I wasn’t saying that by Florida’s law I’m entitled to a lunch break but by the employer Handbook it states that if I work a certain amount of hours I am entitled to a lunch break (that in which I’m denied by this particular person). Upon having the conversation with the assistant manager about my lunch break she said that the manager told her not to give it to me. So I respectfully asked if I could call the manager and she told me to go ahead. The manager stated that she (herself) got mad at me because I called her cell, when in fact that’s what she allows when there are issues or she’d ask why didn’t one call her cell. However, she also said that it was disrespectful because I said what is written about the lunch break in the Employee Handbook, since everytime there is an issue that can be solved by reading the handbook employees are asked, “have you read the handbook.” So that’s where the confusion came in for me. Also, I must say, that I know that I’m a good worker cause I’ve only been there since Oct. 19, 2010 and am constantly asked to train the newest employees because I’m number 1 in costumer service. Thank you so much for taking the time out to respond to my issue, it helps me a lot.

Amelia

March 10, 2011 at 5:07 pm

Hi Deshawn! Thanks for clarifying! Again, if the manager and assistant manager treat other employees differently, you may have a good case for illegal discrimination. We agree that it is unfair for them to selectively enforce policies in the employee handbook. Feel free to post any additional questions you may have! HTH, and thanks for reading the blogs!~ Amelia

Alex

April 18, 2011 at 9:18 am

I work in Miami, Florida at an office building occupied by several different businesses. The building has 2 picnic areas, 4 bathrooms, and ashtrays all over for smokers. Everyone in the building can use these except the company where I work. We are not allowed to use anything (Bathrooms, picnic area, water fountain, etc…) If we do we will be fired. I work with 50+ Men & Woman, in our office there is only one bathroom with no soap or paper towels to wash your hands. The toilet paper is kept on the floor. And they never clean the bathroom. If you want to go to the bathroom you have to use the one at the local McDonalds down the street during your lunch break, But if we work a shift that’s less then 6 hours we don’t recieve a break. On those days you can’t use the bathroom period. If you want to eat lunch you must eat it in the office breakroom sitting next to a 50 gallon trashcan. If you want to smoke, even though everyone else in the building can do so at the picnic area, we have to go to the McDonalds to smoke. If we don’t we will be fired. Is any of this legal?

Amelia

April 18, 2011 at 9:25 am

Hi Alex! Yes, all of this is legal except the bathroom situation.

There is no law that an employer must permit workers to smoke, provide a smoking area or provide paid or unpaid breaks to smokers. This is true, even if other employers who lease offices in the same building have different policies. Many employers including most hospitals prohibit employees from smoking, and do not allow them to leave the premises during the workday, even on their breaks. These employees may work a 10 or 12 hour shift without being able to smoke even one cigarette.

There is no law in Florida or most other states that the employer must provide a break room or picnic area for employees to eat. This would be true, even if employees were not allowed to leave the premises during their meal breaks. There is also no federal or Florida law that requires an employer to give meal breaks to employees, even when they work a shift of 12 hours or longer.

However, OSHA worker safety regulations require that the employer furnish an adequate number of restrooms for employees. For a staff of 25 men and 25 women, the employer would be required to supply a total of 4 toilets. The same regulations also require that the employer keep soap and towels available for hand washing, and that the bathrooms be in a clean and sanitary condition.

The availability of restrooms at McDonald’s really has nothing to do with this situation. The employer is not required to give any employee a break to go to McDonald’s, to use the restroom or eat a meal.

It may be that the employer has negotiated cheaper rent in return for its employees not using the building facilities. However, federal regulations still require the employer to provide an adequate number of toilets for employees to use.

If your employer was reasonable, we would suggest that you speak to your supervisor or HR about this problem. However, they do not strike us as reasonable people. Therefore, our recommendation is that you print the information below and send it to the employer anonymously. If there is no improvement within 10 days, you should file a complaint with OSHA at http://www.osha.gov. It is illegal for the employer to take negative action against an employee who files a complaint with the federal agency.

Beyond that, the only advice we can offer is that you apply for jobs with the other companies in the building, that offer better working conditions to their employees. HTH, and thanks for reading the blogs!~ Amelia

Read more about OSHA regulations at: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=9790

Alex

April 18, 2011 at 9:39 am

Btw, our office is also the only one that doesn’t have air conditioning. So you can just imagine what it’s like in a small call center with over 50 people in the florida heat. And every time you need to use the bathroom or get a drink a water from the sink they take that time out of your check.

Amelia

April 18, 2011 at 10:04 am

Hi again Alex! It sounds like these are really terrible working conditions. Call centers are the sweat shops of the 21st century.

There is actually no federal regulation that specifically requires employers to air condition an office. OSHA regulations require that the employer permit workers to drink water, especially when working in the heat. Include the heat and restriction on drinking water in your OSHA complaint.

Under the FLSA, the federal minimum wage law, employees must be paid for breaks that are shorter than 20 minutes. In most cases, this would include bathroom breaks and breaks to drink water. If the employer is not paying you for short breaks, you can file a wage complaint with the US Department of Labor at http://www.dol.gov. Again, it is illegal for the employer to retaliate against an employee who files a wage complaint. HTH, and thanks for reading the blogs!~ Amelia

You may also find this information handy: http://www.dol.gov/whd/regs/compliance/whdfs64.pdf

Alex

April 18, 2011 at 12:17 pm

Hello Amelia. Thank you very much for your quick response, the information that you have supplied is extremely helpful for my situation.

Alex

April 18, 2011 at 12:26 pm

BTW, I didn’t mean that my employer needs to give me a smoke break, I just meant that is it leagal for him to fire me if i smoke before work, during my lunch break and after work. Also is he allowed to prevent me from sitting in the picnic area before, during and after work even though the building allows it.

E. Soto

May 1, 2014 at 10:48 am

I am a cable technician and I have to drive from house to house doing my job in the company van, my employer is requiring that I take my lunch break while I am driving from one house to another, it is this save or legal for me to do it?

lisa

June 29, 2014 at 1:50 pm

All the details as to whether or not you have a claim depend on the intricate details of the situation. You should not assume you do or do not have a claim without having it reviewed by an experienced overtime lawyer.

Tonya

July 2, 2014 at 11:38 pm

Thank you for this website. It is very informational. I am a salaried employee and work about 10 hours daily. I live in Florida and understand there are no meal/break laws in Florida. I believe my problem may be more of an illegal discrimination case. My employer said I was not entitled to a meal break, then he said only 30 minutes for my meal break and then said I could not leave the premises during my meal break, all stated after taking 3 breaks in a 6-month period. All other employees take 30-45 minutes meal breaks and leave the premises, i.e. to pick up their children from school, check their checks, shopping, etc, in addition to, (1-3)15 minutes “cigarette” . The employee handbook clearly states employees are allowed up to 1 hour non-compensated meal breaks. Meal breaks may be taken in up to 3 total increments. Noting the employee handbook, I took a meal break, leaving the premises for 30 minutes and was written up the next day and threatened with termination. Do I have a case for illegal discrimination? Please advise.

jennifer

July 3, 2014 at 1:21 am

So I work the night shift and a manager quit so I took overnights like asked until a new manager was hired one was and told to me she was the new overnight manager. She worked one overnight and then it went back to me for some untold reason, then outside my availability. I am now getting scheduled and getting wrote up cause I made it clear and in my application as well what my availability was. Now since I asked for a transfer it has gotten worse even getting off at 6 am to be back for a 2 or 3 hr meeting then be back again at 4pm that night.

I also have minors that work off the clock (pick up managers and product). I don’t believe any of this is right in any way. What do I do and it gets way worse?

Amelia

July 4, 2014 at 6:20 pm

Okay, let’s take a look at the problems one at a time. Unfortunately, compared to many other states, Florida has few laws that protect employee rights. For example, there is no law that the employer must schedule you only when you are available. Even if you let the employer know when you were hired that (for example) you were not available on Wednesdays, they can schedule you on Wednesdays. If you do not work that day, you can be disciplined or terminated for nonattendance.

Unfortunately, once you agreed to work the overnight shift, you are a bit stuck. Even if you made it clear you considered it temporary, you’ve agreed to it and the employer is not under any obligation to put you back on days. If the employer chooses, they can hire a new manager for days and leave you on nights permanently. We’d like to think this was a miscommunication, but it’s also quite possible that the employer is taking advantage of you. Sadly, once you’ve agreed to this, if you refuse to continue to work the overnight shift, you can be terminated for nonattendance.

FL doesn’t have any law that would prevent an employer from scheduling you to get off at 6 am, come back for a 3 hour meeting, and then return for another shift at 4 pm. A good employer would not do this, unless they were trying to get rid of the employee…but it doesn’t sound like your employer is a good one. Honestly, the best option might be to work the overnight shifts while you look for a better job, where you will work days–and where your employer values the labor laws.

Obviously it’s wrong for the employer to have minors working off the clock. However, you want to be very cautious about how you handle this. If you report it to a federal agency, since you are the manager, it’s quite likely the employer will try to make it look like it’s all your fault.

Most states have a state agency that enforces wage payment laws. Florida does not. So instead, you will need to gather evidence and report it to the U.Sl Department of Labor. Keep a written record of unpaid work by minors including name, hours and dates. It may be helpful if you snap a cell phone photo of them working. You might consider sending your supervisor or the HR department a polite, respectful email or text that you are concerned that this practice could cause problems for the company in the future. (However, again, do not be surprised if they try to use this as an excuse to discipline or fire you.)

Once you have gathered the evidence, you can contact the U.S. Department of Labor about it, because it is a violation of child labor laws. However, it’s possible they may do nothing. They have limited resources and are more likely to pursue a case if it involves thousands of employees and millions of dollars, rather than a few workers. Meanwhile, again, our wish for you is that you will focus on finding a job with a better company.

Amelia

July 4, 2014 at 6:33 pm

Hi Tonya,

Thanks for the kind words! We love this blog, too!

The sad truth is that what your employer is doing is totally unfair, but pursuing a case against them in Florida would probably involve years of your time and thousands of dollars…and then you might lose.

There is no requirement that an employer give meal breaks to workers in Florida. Some states have laws that require an employer to honor the working conditions presented in the employee handbook…Florida does not.

Generally speaking, it is legal for an employer to discriminate between two employees, as long as that discrimination is not based on race, color, religion, sex, national origin, etc. Suppose there were 20 employees and you were the only manager, or only salesperson. Or the only salaried employee. The employer could allow everyone else to take meal and cigarette breaks, but fire you for taking them. This is completely legal…an employer can have different expectations for employees in different jobs or on different shifts.

What is not legal is when everything else is the same, but an employee in a protected group is treated differently. Suppose the company has 20 salaried managers all doing the same job on the same shift. One manager is African-American. If the employer allows everyone to take a one-hour lunch break each day, except the single African-American employee, that is likely illegal discrimination. But if the employer allows hourly workers (or salespeople, or night shift managers) to take breaks, but not day-shift salaried managers, sadly, that’s probably not illegal discrimination.

Even if this is illegal discrimination, it may not be worth pursuing. Many states have active agencies that defend workers’ rights. Florida has the opposite…they enable bad employers. So while you certainly have the right to contact a lawyer and sue your employer, we would be very surprised if it improved your quality of life.

Our best recommendation is to sit down and speak with the employer respectfully and calmly, letting them know you see this as unfair. However, in tandem with that, we’d like to see you looking for a job with a better company.

Amelia

July 4, 2014 at 7:29 pm

That’s an excellent point, Lisa!

Cindy

July 25, 2014 at 4:53 pm

I work for a very large employer in Florida. They have offices in almost every state in the United States. There is no printed company policy regarding lunch in the human resource manual. I am a time card employee ans everyday we are required to record 30 minutes minimum, 45 minutes maximum, for “lunch” and are not paid for that time. We are allowed to work overtime everyday with a maximum of 15 hours per week, but overtime is not required. Many employees would choose to skip lunch and work their overtime hours during the lunch break but they are forced to time out at least 30 minutes. This 30 minutes is not allowed to be taken at the end of the day or first thing in the morning, but the company is very flexible with the 30 minutes any other time. They are now saying that the minimum “lunch” break will be 45 minutes and we must clock out. When questioned about this “forced lunch break” we were told they are required by law to have employees clock out for this time. I cannot find such a law.

Amelia

July 27, 2014 at 7:57 am

Cindy, there is no federal or Florida law that requires an employer to give meal breaks to workers. However, in any state, an employer can require that employees take a 30 minute or 45 minute unpaid meal break each day. The employer has the right to establish this work policy and write up or fire any employee who violates it. There is no federal or Florida law that gives employees the right to skip meal breaks without consequences. This is true, even if employees are permitted to work overtime each week.

Under federal law, employees must be paid for all the time they work. So if you or your coworkers skip a meal break, by law you can be written up or fired for it, but you must be paid for that time.

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