From: Staffing
With limited exceptions (discussed below), neither the federal Fair Labor Standards Act (FLSA) nor Texas law requires employers to give breaks during the workday. However, if breaks are given, certain rules apply under federal law and employers may impose their own conditions on the use of break time. Rest or coffee breaks (defined as 20 minutes or less) are considered compensable hours worked under 29 C.F.R. § 785.18, since they are regarded as being for the benefit of both the employer and the employee.
Smoking breaks are not required under Texas or federal law, but if a company allows such breaks, they count as rest breaks. Companies are free to adopt whatever policies they want to regarding smoking breaks.
Meal breaks, on the other hand, are not compensable, as long as they are at least 30 minutes in length and the employee is “completely relieved from duty for the purpose of eating a regular meal” (see 29 C.F.R. § 785.19). Shorter meal breaks may be considered valid under special circumstances. Such breaks are a matter of company policy. Since they are optional, an employer can allow meal breaks, or not. If meal breaks are allowed, the employer can impose conditions on them, such as when they occur, how long they are, where they may or may not be taken, and whether any particular consumables are disallowed (such as alcoholic beverages). The most frequent pitfall for employers is thinking that employees have true meal breaks if they are allowed to eat at their desks while answering phones, opening mail, sorting files, and so on. Such duties performed while trying to eat will render the time spent during the meal break compensable. While employers should not insist that an employee actually eat something during a meal break, they may prohibit any kind of work during such time and may require employees to leave their desks or work stations during the allotted meal break times. Employers may control unauthorized work during meal breaks by the disciplinary process. Although Texas does not have a general law regarding meal or rest periods, Texas law does provide for a day of rest for retail workers as well as duty-free meal breaks for teachers and librarians.
Pursuant to the 2010 amendments to the FLSA, covered employers are required to provide reasonable break times for a nursing mother for the purpose of expressing breast milk for her baby during the first year following the birth of the child. Presumably, the same law would allow the mother to nurse her child if employees’ children are allowed in the workplace. The law exempts employers with fewer than 50 employees if to provide such breaks would be an undue hardship for the business. Such breaks do not have to be paid. The Department of Labor will need to adopt regulations defining what is meant by “reasonable” in terms of break time. Texas law also protects a mother’s right to breastfeed.
Note: Texas cities may adopt their own ordinances regarding break periods. For example, the city of Austin requires at least one 10-minute break per four-hour shift for construction workers working in the city.
