An Overview of Break Laws in Georgia
Georgia law applicable to private employers has no specific laws regarding breaks. A Georgia private employer is not required to provide employee breaks or lunch periods (unless they are provided in a binding agreement, policy, or practice). Breaks for the purposes of nursing mothers, those recovering from pregnancy, and those suffering from lactation-related medical conditions are required under federal law. Under state law, for employees of private employers it is up to that employer whether or not an employee may take a break during the work day.
Normally, Federal law supersedes state law in the event of any conflict between the two. However, as of the date of this writing, Georgia law is more generous than Federal law as far as breaks are concerned . In many states, employers may require employees to continue working when their "rest" break or "meal" period is running at the same time as regular work. This is not the case in Georgia. Georgia has no law to the contrary; however, Federal law (as it relates to permissible pay dockings), makes it clear in court and agency interpretations that this is not permissible – i.e., that an employee must be completely relieved of duty for a "rest" break or meal period.
Federal law requires covered employers to provide nursing mothers with breaks or meal periods, although the particulars vary. Because all private employers are exempt from the provisions relating to breaks and meal periods; and it has been held that nonpayment for rest periods does not mean a violation of overtime provisions, federal breaks laws are of limited usefulness to Georgia employees.
Lunch Breaks: What Employers in Georgia Should Know
Georgia does not require employers to provide its employees with meal periods. But if an employer chooses to provide a meal period, the time must be paid if the following conditions are met:
- Consideration is given to the convenience of the employer;
- Sufficient time is allowed for the employees to eat a meal during the time allowed for the meal period; and
- The employee is completely relieved from his or her duties during the entire period or performs no duties during that period.
If an employer provides employees with a meal period but fails to adhere to these guidelines, the employer may be liable in an FLSA wage-hour action. Specifically, if the meal period is used by the employee to perform any duties and the employer’s policy does not relieve the employee of all duties during that time, the employer must pay the employee for time worked during that meal period, regardless of whether the company expects the employee to work during that time. Thus, the general rule to follow is that, unless an employer does not provide employees with a meal period (in which case all time should be paid), meal periods should be paid unless the right to a meal period is "sufficiently enforced so as to create a clear practice and expectation which, if violated, would subject the employee to a penalty or discipline."
Rest Breaks and their Importance under Georgia Law
Rest breaks at work are generally at the discretion of the employer, whether written company policy or unwritten custom. For example, companies may have different policies about afternoon rest breaks. Some allow, some don’t. Some offer them freely, others only in particular circumstances, such as strenuous physical labor or certain departments with heavy workloads at certain times.
Companies may be required to provide occasional rest breaks as a reasonable accommodation under the Americans with Disabilities Act. Providing a reasonable accommodation does not violate the Fair Labor Standards Act provisions about being paid for all hours worked.
Depending on the employer, breaks may be required. Restaurant servers are often permitted to work no more than five hours without a 30 minute break. Department of Labor regulations state:
Except as otherwise provided herein, an employee must be paid for all time spent on the premises during his shift (or during the hours he is required to be on the employer’s premises or at any other prescribed place to perform the duties of his employment). Such time includes all time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace. Time is also considered hours worked if the employee is "engaged to wait" or "waiting to be engaged." For example, an employee who walks to his or her regular workstation at the beginning of the workday or from it at the end of the workday is working during such walking time.
The Fair Labor Standards Act does not require employers to have a break time policy. However, even when absent, breaks are sometimes required to protect the health or safety of the employee or other persons. If an employee is completely relieved of all duty for a definite period of time, usually at least 30 minutes, and allowed enough time to eat while so completely relieved, a rest or meal period need not be counted as hours worked. Even then, if the period is less than 30 minutes, it must be counted as hours worked if it is unable to be used by the employee for any purpose.
Typical scenarios:
There are many exceptions and special circumstances in which breaks must be provided by law, such as in the transportation industry, for nursing mothers, for public restrooms in the absence of lavatories, and for minors. If an exemption to the usual requirement of being paid applies, however, it should be included in company policy, so there is no question about the application of the policy.
Under the federal Family and Medical Leave Act, breaks must be allowed for the treatment of certain medical conditions, including HIV/AIDS.
The Effect of Federal Law on Breaks in Georgia
In addition to the various state-specific labor laws, federal labor statutes affect Georgia Employee breaks as well. Most notably, the Fair Labor Standards Act (FLSA) is the law that outlines federal break requirements. Federal law typically does not address the issue of breaks for adult employees. Instead, a few very basic precepts exist. First, the Fair Labor Standards Act requires that compensable work time not be interrupted by "bona fide" meal periods. Hence, a lunch break of at least 30 minutes twice a day is typically permitted under federal law, provided that the employee is relieved of all duties during that period. Second, the FLSA also permits noncompensable occasional rest periods of no length specified, which generally cannot exceed 20 minutes.
As is often the case, many Georgia employers are usually more generous than the federal government and do provide additional breaks. As discussed above, Georgia is very lenient with regard to breaks, so long as that break period is not determined to be part of the employee’s compensable work time. That is, a Georgia employer must consider all time spent in "activity" to be compensable – if an employee is "working," regardless of whether they are working at a client’s home site, in the office, or in the breakroom, they need to be compensated for any and all activities. If a break is not considered to be the employee’s compensable work time, then the break requirement imposed by the Fair Labor Standards Act is typically met.
When compliance issues do arise, oftentimes the conflict stems from the overlap or preemption issues between FLSA’s federal requirements and the Georgia state law. Although the FLSA is the law of the land with respect to breaks, it is important to understand the interrelationship between federal and state law on this subject. Georgia law does not require the payment of wages for break time, and thus when there are no Georgia break requirements, the employer should not have a break-related wage problem under Georgia law. However, if an employer elects to have generous Georgia break provisions (say, two 60-minute paid breaks), the employer probably is going to have a FLSA problem on the other end of the spectrum, in that the employees may be working too much and earning compensation at too great a level for minimum wage employees such as those covered by the FLSA.
Employee Rights and Employer Duties
In terms of employees rights to break periods, in Georgia, the relevant laws and regulations are set forth in O.C.G.A. § 34-4-1 et seq. Sections 34-4-1 through 34-4-6 address the requirements of meal and break periods for those in the public employment arena. Section 34-4-7 addresses the ability of public employees to be paid while on break.
O.C.G.A. § 34-4-1(2) states, "The term ’employer’ means any person employing employees within the state except the United States government and the municipalities of this state."
O.C.G.A § 34-4-3 provides:
(a) No employer shall permit any female to work more than six consecutive hours without at least a 30-minute interval for rest and refreshment.
(b) No employer shall permit any male or female regularly employed eight hours per day to work a longer period without at least a 30-minute interval for rest and refreshment. The interval, where the employee’s duties will permit, shall be taken as nearly as practicable in the middle of the period of work.
Section 34-4-4 defines a number of industries and jobs that are exempt from providing these breaks. Under Section 34-4-5, the Commissioner of Labor is authorized to:
…promulgate such reasonable and necessary regulations, as nearly as possible , to conform the law and this part to the requirements of the Fair Labor Standards Act of 1938, as amended. Nothing in this part shall be construed to make applicable the provisions of this part to employers who are not covered by the Fair Labor Standards Act of 1938.
Although the FLSA covers many issues regarding pay issues, it does not specifically require breaks. The FLSA provides that states can apply more stringent provisions, but preempt less stringent provisions. Thus, the provisions under the Georgia law outlined above would be preempted by a less stringent provision in the FLSA. The FLSA does not detail the requirements for mandatory breaks, so the breaks outlined in Georgia law apply.
Under Section 34-4-6, remedies are provided for employees hurt by an employer’s failure to provide the required breaks. However, there is no private right of action under these provisions. Public employers may be liable under the Georgia Tort Claims Act (GTCA), for violations of O.C.G.A. § 34-4-5, which requires employers to pay employees for the break time (provided the break-times do not exceed one hour per day). This is a controversial area with limited case law. Since the conditions for recovery under the GTCA are quite specific, the application of the GTCA to this issue may be unsuccessful absent new case law.
Legal Action for Break Denial
Georgia law provides potential remedies for situations where employees are denied eatings breaks or rest breaks. The remedies, however, depend upon whether the breaks would constitute unpaid time for purposes of overtime and minimum wage laws. In situations where lunch breaks must be provided to meet the FLSA requirements for unpaid meal periods, the employee may seek monetary damages as outlined in above. However, in the more common situations where rest breaks need only be provided to assure that employees receive at least a minimum wage for the time spent in performing work duties, the remedies differ. Under the latter circumstance, an employer who provides no paid medical breaks at all, or who provides them pursuant to a very restrictive written policy that does not provide a reasonably predictable amount of such break time for each workweek, may effectively be providing such employees with free medical breaks. Such cases have recently been litigated in court. However, monetary damages are not available in such cases. Instead, the aggrieved employee must pursue the case under a statutory provision providing only for injunctive relief from the court in the form of a Court Order requiring that the employer reform its medical break policies.
Best Practices for Georgia Employers
To ensure compliance with this law, Georgia employers should implement a thorough policy regarding employee breaks:
Develop and Implement Break Policies
Employers should develop, implement and enforce a written policy that clearly states the types of activities for which breaks are compensated and the types of activities for which breaks are non-compensable. For example, a policy should state that employees are entitled to pay during rest breaks, but are not entitled to pay if they perform work during their lunch break.
Training
Employers should train managers on this issue. Employees often come forward to management about concerns with employment issues, and managers should understand how to address those concerns. Supervisors are likely to be the first line of defense in dealing with such employee complaints. Indeed, if a supervisor handles a complaint improperly, the employer may be liable for retaliation even though no discrimination actually occurred . Supervisors must also be educated specifically about meal and rest period laws. These laws, particularly as they relate to exempt employees, are often complex and difficult to navigate. Thus, supervisors must be trained on how to recognize when an employee is working during an unpaid break when the employee should actually be clocked out. Additionally, employers should train supervisors on why managers must never "discount" employee hours. Many times, managers pressure employees to "just go ahead and record all their hours." Managers need to understand that this is prohibited, even if one employee does not want to be "held liable" for overtime.
Monitoring
Employers have no obligation to provide breaks; however, if employers provide such breaks, the breaks must be paid. To monitor compliance, employers should engage in the following: If notified by an employee that he has not been paid for his time working during a break, an employer should immediately conduct a payroll audit before the employee files a lawsuit.