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Friday, October 10, 2014

States With Pro-Employee Laws: Work Breaks For Employees

 Or, States That Don't Suck For Employees, Part VII

Some people don't believe me when I tell them that no federal law requires any breaks for employees, but it's true. No lunch breaks, rest breaks or even bathroom breaks are mandated by law (and don't tell me about OSHA and bathroom breaks*). A majority of states also don't have any laws requiring breaks for anyone but minors.

Still, if you're lucky you might live in a state that has some laws requiring work breaks. Here's how it breaks down:
  • Meal breaks:  Only 20 states require any meal breaks. California, Colorado, New Hampshire, North Dakota and Washington require 1/2 hour within five hours of work. Connecticut and Delaware require ½ hour after first 2 hours and before last 2 hours for employees who work 7½ consecutive hours or more.Illinois, Kentucky, Maine, Massachusetts, Minnesota, Nebraska, Nevada, New York, Oregon, Rhode Island, Tennessee, Vermont and West Virginia all have laws about meal breaks. In the other 30 states, employers are allowed to starve you.
  • Rest breaks: Only nine states require any rest breaks. California, Colorado, Kentucky, Nevada, Oregon and Washington require 10 minute breaks for every 4 hours of work. Minnesota and Vermont require reasonable bathroom breaks. Illinois also has rest break requirements but only for hotel attendants. All of these states also require meal breaks. 
If you aren't in one of these 20 states, you're at the mercy of your boss to be allowed to eat, go to the restroom, or just take a stretch. Yet I still encounter folks regularly in Florida (one of the no-breaks-for-you states) that get fired after insisting on their legal right to take their lunch or rest break.

True, most bosses won't actually make you have a potty accident, but there are sadistic jerks out there who will. You do have some rights though, despite this.

Disability: If you need regular meal or bathroom breaks due to a disability, then put in a reasonable accommodation request under the Americans With Disabilities Act and have HR mandate your breaks. If the boss still won't honor your approved accommodation, report him/her to HR. If the company won't accommodate you, you probably have a disability discrimination case.

Nursing: You're entitled to a break and a private place to express breast milk if you're nursing.

Sex discrimination: I ran into a woman who was told she couldn't take her purse to the restroom when she had her period. Men had no restrictions on what they could take to the restroom. Fortunately, she reported it and HR had the sense to stop this silliness immediately.

Obviously, if the employer is only allowing employees of a particular race, national origin, age or other protected category to take breaks, that's also illegal. I shouldn't say it's obvious though, because any boss who doesn't allow reasonable bathroom or meal breaks is a sadistic idiot.

*I know I said don't tell me about OSHA, but they really are supposed to make employers allow reasonable bathroom breaks. See OSHA Standard # 1919.141(c)(1)(i)
OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(l)(i), requires employers to provide their employees with toilet facilities:
Except as otherwise indicated in this paragraph (c)(l)(i), toliet [sic] facilities, in toilet rooms separate for each sex shall be provided in all places of employment in accordance with Table J-1 of this section .... [emphasis added]
This memorandum explains OSHA's interpretation that this standard requires employers to make toilet facilities available so that employees can use them when they need to do so. The employer may not impose unreasonable restrictions on employee use of the facilities." "The language and structure of the general industry sanitation standard reflect the Agency's intent that employees be able to use toilet facilities promptly." In light of the standard's purpose of protecting employees from the hazards created when toilets are not available, it is clear that the standard requires employers to allow employees prompt access to sanitary facilities. Restrictions on access must be reasonable, and may not cause extended delays.
So yes, OSHA does state that they require employers to allow prompt bathroom breaks. I wish you good luck in actually getting OSHA to enforce this standard though. At least in Florida, they'll probably refer you to the Department of Labor, which has nothing whatsoever requiring bathroom breaks under their jurisdiction.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.