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California Employment Lawyers > Blog > Employment > Your Employer May Have To Pay You For Break Times

Your Employer May Have To Pay You For Break Times


The Fair Labor Standards Act (FLSA) is a law that requires that employers pay workers for hours that they work, and that the employers pay overtime for hours worked that exceed 40 hours a week. The FLSA doesn’t apply to everyone, but if it covers you (or did so in a previous job), there is a chance that you were not paid for time you worked, and you don’t even realize it.

Most employers do try to comply with the law, and pay workers for time they work, and pay overtime when those workers exceed 40 hours a week. But where many employers get in trouble, and where many employees don’t realize they are entitled to be paid, are on their breaks.

Shorter Breaks

You may understandably ask why you would deserve to be paid, if you are on a break at work, such as going to lunch, or just stepping out for a bit. And, your employer may understandably not calculate this break time in counting how many hours you have worked. But in some cases, the FLSA does require that these hours be counted, and that you be paid for them.

The FLSA specifically says that any break that is less than 20 minutes in length, must be counted as working, and on the job. That means that if you run to the bathroom, or out to your car, or you take a smoke break, that your employer cannot mandate that you clock out, and the employer cannot reduce your pay, to account for this break time.

Even if your employer doesn’t require you “clock out” or sign out, your employer can still get in trouble, if it isn’t counting these shorter break or restroom times, because at the end of the week, including that break time that your employer was excluding, you may have actually worked more than 40 hours, thus entitling you to overtime under the FLSA. And once you work over 40 hours, you are entitled not simply to your normal pay, but you are entitled to overtime pay.

Additionally, if you include the break time in your weekly work totals, and then divide by what you were actually paid, there is a good chance your employer may not have even paid you the legally required minimum wage.

Working on Breaks

Another thing employers will do is make you work on your break time, even if you should be on break. For example, let’s say you get an hour lunch break—time that is not counted towards your total working hours. However, during your lunch your employer often calls you, asks you questions, texts you, or expects you to be available for the employer’s calls or texts.

You actually are not “free” on your break—you are working, under your employer’s control, and thus, that break time potentially must be counted towards your weekly working hour totals.

Contact the San Jose employment law lawyers at the Costanzo Law Firm today for help if you haven’t been paid for your work on the job.




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