When is a break not a break?

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The eight-hour workday was developed during the Industrial Revolution so that workers doing manual labor in a factory would not have to work as many hours. Prior to that, in the late 18th century, factory workers worked 10-16 hours days to keep factories running 24/7. A campaign was started to have people work no more than eight hours in a day so that they would have eight hours of work, eight hours of recreation, and eight hours of rest. The campaign was successful.

The goal was humane, but it doesn’t take into account our modern situation in which employees who work steadily for hours on end, sometimes for 10 to 12 hours in a day, are assumed to be more productive than employees who take breaks. According to the Bureau of Labor Statistics, the average American actually works 8.8 hours in a day. This is more time than the average worker spends doing anything else.

However, one study shows that workers who take brief breaks are more productive than those who keep working continuously for more hours, regardless of the number of hours they were working overall. Ideally, according to that study, there is an hour of uninterrupted work and then a break of about 15-20 minutes.

Many employers don’t understand this. Some states do require breaks, but most states, including Texas, do not, other than OSHA rules about restroom breaks for the purposes of sanitation. There are some exceptions for certain highly dangerous jobs. Moreover, under FLSA section 207(r)(1), employers are required to give non-exempt nursing employees reasonable break times so that they can pump (or nurse in those cases in which babies are allowed to be in the office) during their baby’s first year of life. The law does exempt employers that have less than 50 employees with regard to this break if providing a nursing or milk expression break would present an undue hardship. Moreover, the break doesn’t have to be paid.

Additionally, some cities in Texas do have ordinances related to breaks. In Austin, construction workers are entitled to have one 10-minute break per four-hour shift.

Employers that do claim to offer breaks, even though they aren’t required to do so under the FLSA, may not understand that their employees are entitled to be paid for those breaks. Short breaks are not considered breaks for the purposes of calculating minimum wage or overtime under the FLSA. For example, coffee breaks that are 20 minutes or less are considered to promote efficiency and productivity and ultimately benefit the employer, so they are paid breaks. Similarly, if you take a five-minute break to eat a snack, this is a paid break.

Lunch breaks that are 30 minutes or longer and are taken in order to eat a meal are unpaid. However, to be unpaid, a worker must not be taking on work or working through lunch during this period. For example, if you are a secretary filing legal files while drinking a protein shake, this break will still be considered your regular work time.

If you are entitled to overtime for working off the clock, you should retain an experienced Texas attorney. Contact us at (214) 528-6500 or via our online intake form.

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