An Overview of Break Laws in Nebraska
As with a majority of states, Nebraska does not have any specific state laws regarding breaks for employees. Unless the employer is a public facility or is subject to other federal requirements, breaks are simply not required under the state laws. In other words, in Nebraska (as with most states), the issue of whether an employee receives a break at all, as well as when and how long such breaks last, are all matters left to the employers’ discretion. Although the Fair Labor Standards Act, 29 U.S.C. 201 et seq., ("FLSA") requires employers to pay employees for their time spent on breaks less than 20 minutes , there are no such similar state laws related to compensable time for the time spent by employees on breaks. While the FLSA will factor in to some extent in any applicability within Nebraska, the FLSA basic requirements are very minimal in terms of an employers’ obligations in this regard, and no more substantial requirements exist for Nebraska employers.
But do note that there are three important requirements you must be particularly mindful of in breaks for employees in Nebraska: (1) break periods cannot be used to discriminate against one employee over another; (2) there is no set number of hours required to be worked before a break period must be given; and (3) there is no set number of hours required to be worked before lunch and/or dinner period must be given.
Federal Laws Governing Work Breaks
Although there are no mandated guidelines for breaks and meals specifically under Nebraska law, it is never safe to assume that employers are free to do as they please in this area. The federal regulations for breaks and meals come from the Fair Labor Standards Act (FLSA), which may overrule state law if the employer is subject to it.
When Does the FLSA Apply?
The FLSA sets minimum wage, overtime, and child labor laws. More than 130 million U.S. workers live under its regulations.
If the employer has at least two of these characteristics, it is automatically subject to the FLSA:
The FLSA applies a number of strict criteria for determining whether workers are bona fide executive, administrative, or professional employees, and therefore exempt from overtime pay. In general, the job must involve more than a set amount of income and meet other specific tests.
If the FLSA does apply to an employer, it becomes the "floor" for break and meal periods. That means the employer cannot allow less time than the FLSA stipulates. However, in many cases, the employer may provide more than what is required.
Rest Periods
Under the FLSA, employers are not required to provide breaks or rest periods, except under very limited circumstances. But if they do, they must:
In addition, the law states that short breaks must be counted as hours worked under the minimum wage and overtime requirements. Even with this caveat, however, employers can still avoid paying workers in certain situations, such as:
Meal Periods
Employers do not have to provide meal periods for workers under the FLSA, but when they do, the time does not count as hours worked. However, there are very specific rules that govern the allowances, including:
The FLSA considers the nature of the work that is actively performed during the break in determining whether the time constitutes work. If the employee is expected to perform any duties during the meal period, no matter how minimal, the time must be counted as hours worked. For example, if a manager must monitor employees even while "taking" his or her lunch, the lunch period should be included in the number of hours counted toward overtime worked.
Nebraska Meal Break Provisions
Employers must provide non-exempt employees with unpaid meal breaks of at least thirty minutes when they work eight or more consecutive hours. This requirement generally applies regardless of whether the employee is "on duty" or works through lunch. However, in certain industries, such as healthcare, the right to a meal break may be "bargained away."
Nebraska law maintains that each employer shall grant an employee an unpaid meal break of at least thirty minutes when the employee works for at least eight consecutive hours, except for employees specified below. If an employee works shifts that include more than one meal period, only one such meal period need be provided. The meal break may not be taken at the beginning or the end of the employee’s shift. If an employee works eight continuous hours, the employer must provide at least ten consecutive minutes of rest for each consecutive four hours or major portion thereof worked. These exceptions apply to: The employer need not provide a meal period to: If a specific industry has bargained away an employee’s right to unpaid meal breaks, this general rule may not apply.
Rest Breaks and Employee Rights
Nebraska law does not require employers to provide for breaks or rest periods to employees. Despite that reality, certain employees are entitled to a 10-minute paid break for every four hours worked or major fraction thereof.
"Major fraction" refers to any time period in excess of one-half of four hours. Essentially, employees working fewer than three hours in any work day are not entitled to a rest break. Employees who work at least 6 hours but less than 8 hours, however, are guaranteed at least one 10-minute paid break. Those who work at least 8 but less than 10 hours are entitled to two 10-minute breaks (or 20 minutes total), and employees who work 10 hours or more are entitled to three 10-minute breaks (or 30 minutes total).
These periodic rest breaks must be scheduled by the employer "to be taken at or near the middle of the period of work, as far as practicable." Periods of rest cannot exceed 10 minutes and cannot be permitted to accumulate over the course of the work day. If an employee works through a required rest break, the employee is entitled to the rest break at the end of the work day or on the next business day. The employee cannot waive the right to the rest break.
Rest breaks are not considered hours worked, and as a result, employers are not required to pay employees for rest breaks. However, if the break is taken on the employer’s premises, the employer may still be liable for providing the rest break.
Employers are not required to schedule rest breaks, but voluntarily choosing to do so makes it mandatory for the employer to actually provide the break. Failure to allow paid rest breaks may result in a wage claim against the employer.
Work Breaks for Minor Employees
Like many other states, Nebraska has special provision for workers who are still minors. The specific provisions of state law are as follows:
Notwithstanding the provisions of sections 48-310 to 48-377, no minor shall work more than six consecutive days in any week. No employer of a minor shall cause, suffer, or permit such minor to be employed more than six consecutive days in any week of seven consecutive days , except that the minor may work on the seventh day if such day is the minor’s day of rest. Sections 48-310 to 48-377 do not apply where the minor is a resident of another state and the minor’s employment within this state is only sporadic. The age of a minor shall be determined as of the beginning of each period of employment.
The Nebraska Department of Labor provides additional information on the employment of minor and some of the restrictions that apply.
Penalties for Violation of Break Laws
Under Nebraska work break laws, an employer’s failure to provide a required break can result in two adverse consequences. First, the employee may be able to sue for unpaid wages for the extra break period if it was given up, as well as sue for liquidated damages and attorney fees. Second, the Nebraska Department of Labor could file a complaint against the employer, which could result in misdemeanor charges and a fine of $200 per violation.
Nebraska Revised Statutes § 48-1224-121 provides that "an individual working in any occupation shall have the right to at least one thirty-minute meal or rest period during each work period of seven and one-half consecutive hours worked, which time shall be allowed by the employer if requested by an individual." "Employer" is defined to include "any individual or corporation" and "individual" is defined to include "any individual employed by another." The section further states that it "shall not apply to the following: (1) individuals working at any sport or amusement business during a special event, such as a fair, festival, or parade; (2) individuals working at an agriculture operation; (3) individuals working on a landscape design project or golf course; (4) individuals working in a residential construction or repair project; (5) individuals working in an occupation where the nature of such individual’s work requires the individual to be away from the individual’s normal duty station; (6) individuals working in a law enforcement or emergency services capacity; (7) employees of child care centers or home child care providers; or (8) individuals employed in administering the statewide assessment tests.
In Nebraska, the burden of proof is on the employer to establish that the employee is exempt from the Nebraska work break law. In a Nebraska Court of Appeals decision, Wymore Auto v. Carl Prauner, the court said: "Statutory exemptions are affirmative defenses, and the party claiming them, in this case the employer, carries the burden of establishing that they apply." . . .[T]he burden of proof remains the employer’s even where the question turns on the interpretation of a statute. . . .[A]lthough the statute states that "an individual working in any occupation shall have the right to at least one thirty-minute meal or rest . . .", it must be said that the statute confirms the absence of any intent to displace whatever right at common law existed for the employer and employee to contract for an exemption against the provision of work breaks. . . .The general presumption is that procedural statutes are satisfied if the principal rights and liabilities are met."
Failure to comply with Nebraska work break laws could also subject an employer to liability under the permissive liquidated damages provisions of the Nebraska Wage Payment and Collection Act found at Nebraska Revised Statutes §§ 48-1230 to 45-1241. Under this set of statutes, an employee of an employer allegedly violating Nebraska’s work break laws may pursue a claim for unpaid wages for the additional unpaid break time if denied, and for liquidated damages and attorney fees to the extent authorized by the Nebraska Wage Payment and Collection Act.
Work Break Legal Tips for Employers and Employees
As with most situations, the best way to navigate any confusion is through consistent and concise communication. Many potential problems can be avoided if employers upfront set clear expectations with their employees relevant to scheduled breaks.
In most instances, it is the employer’s prerogative to schedule breaks as required by Nebraska law. Unless an employee is working a 5-hour or longer shift, an employer in Nebraska has no obligation to provide employees with rest breaks. Again, unless an employee is working a 5-hour or longer shift, an employer is not required to allow employees to take meal breaks.
The above set forth regulatory restraint provides an employer sufficient flexibility to accommodate employees while still complying with Nebraska law. If an employer wishes to provide its employees with time off for breaks and meals, it may do so. However, to protect and serve the interests of both the employer and its employees, an employer should be clear about its expectations. The employer benefit is that by scheduling breaks, the employer is able to regulate the time of the break so that it does not interfere with the business of the employer. The employee benefit is that the employee will not feel put in a position to have to guess when he or she is entitled to a "break" or "meal."
When establishing these expectations, the employer should be clear on how long breaks will be provided to employees. For example, if the employer intends to provide its employees with fifteen (15) minute breaks, then the employer should specify in its handbook or policies that "employees are entitled to one (1) 15-minute paid break for every four (4) hours of work each day." The employer may specify whether employees are allowed to leave the premises during the break, or whether employees must remain at their workstation for the duration of the break . The "pro" to maintaining the flexibility is the drawback to making such a clear policy statement. The downside will likely come when an employee’s particular situation makes it difficult to comply with the specified "break" and the employer does not allow for flexibility.
When structuring a "break" policy, the employer should consider how they will deal with questions or disputes. Will the full and final word come from the owner? Is there a designated point person? Will every employee be treated the same, or will some employees be afforded concessions? When will the dispute follow the chain of command?
If the policy set forth by the employer is written, then the expectation is set that the employer will uphold the policy unless there is good reason to justify why the policy should not be carried out in that instance. The key to these policies will be uniformity. Changes in policies should be made in writing and should be communicated to employees in a consistent and formal manner. If an employee structures his/her workday around a two (2) hour "lunch break," it is going to create predictable issues if the employer decides that the employee now only gets a one (1) hour lunch break.
Also, once you have one documented exception, as harsh as it may feel, you need to enforce it for all employees. To go back to the "handbook" analogy, the handbook is binding and enforceable to the extent it exists. Clearly it cannot be found in the handbook one day and nowhere to be found the next. Just as clearly, it exists to be enforced. Likewise, the enforcement will be difficult if every Handbook provision is altered so often it appears to be the exception and not the rule.
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