Meal Periods and Compensable Time

Under the Fair Labor Standards Act, employers are not required to provide employees with rest breaks or meal periods.  This is not true, however, in many states where meal periods are required when an employee works a shift of a certain length. In some cases, an employee can waive a meal period, while other states will not allow such a waiver.  In any event, the law – whether state or federal – is clear on one thing:  in order for an employer to not pay an employee for a meal period, the employee must be relieved from all duty during the meal period.  Otherwise, the meal period must be paid. 

In a recent U.S. Department of Labor opinion letter issued on May 28, 2026 (https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FLSA/FLSA2026-7.pdf), the DOL was asked to determine whether a meal period was sufficiently long enough and free from work requirements to be unpaid. In that request, an employee requested an opinion as to whether their 30 minute meal period was actually duty free based on the following facts:  (1) the employee could spend the meal period in the employer’s facility or off premises; (2) the employer’s place of business was part of a secured facility that required employees and visitors to the facility to pass through a security checkpoint both on entry and departure; and (3) it was a 5 to 10 minute walk from the job site to the parking lot.  The employee contended that this additional travel time to and from the parking lot and the need to pass through the security gates only left them with a 10-to-15-minute window for their actual meal period.  Based on this, the employee was asking for a determination as to whether the meal period could be considered duty free for the full 30 minutes or whether the meal period should be paid.  

In responding to the employee’s question, the DOL noted that, while the law does not require employers to provide employees with a meal period during their work shifts, when a meal period is offered it must be duty free and of a duration long enough to allow employees to eat a regular meal.  The DOL cited the regulations which state that 30 minutes or more is long enough for a bona fide meal period.  The regulations also note that an employee does not have to be allowed to leave the premises for the duty-free meal period to constitute noncompensable time.  The fact that an employee has the option to leave the premises for their meal period is a benefit that employers may offer, but that does not extend the time that must be allotted for the meal period.  Ultimately, the DOL determined that the meal period, as described by the employee, met the requirements under the law to be considered unpaid time.

This case is constructive on several levels.  First, it is a reminder that the Fair Labor Standards Act is a complex statute that sets minimum requirements for the payment of employees. It is interesting that this opinion letter request was submitted by an employee and not the employer and shows that employees are not afraid to advocate for themselves and challenge an employer’s practices.  The Act provides employees with several opportunities for such challenges and a failure to abide by the Act’s requirements can lead to expensive lawsuits. Second, it demonstrates the importance of recognizing that the federal law can sometimes be the floor and state law, which may have additional protections, is the ceiling.  This means that, even though an employer is compliant with federal requirements, they may not be meeting the higher standards set forth in the state law.    

An example of this is the requirements surrounding meal periods.  While this opinion letter and federal regulations do not distinguish between the compensability of duty-free meal periods where an employee must remain on site and a duty-free meal period where an employee may leave the premises, California law does treat them differently.  Under California law, employers are not only required to provide employees with meal periods in accordance with strict rules, the employer must pay an employee for any meal period where the employee, although they are relieved of all duties, cannot leave the employer’s premises.  California law also goes one step farther and includes a specific provision that requires employers to compensate employees for any meal periods that are not properly provided or paid. In the case of meal periods, California law is the ceiling and the federal law is the floor and California employers must meet the ceiling requirements or be subject to state wage and hour complaints. 

Given the complexity of and variations between state and federal labor laws and the cost of wage and hour lawsuits, it is important that employers stay up to date on all legal requirements for employee pay.  myHRcounsel can assist you in developing policies and procedures that meet both federal and state requirements.