UnderCover Waitress: Rest Breaks, Meal Breaks, Smoke Breaks

Thursday, July 26, 2012

Rest Breaks, Meal Breaks, Smoke Breaks

Ask the Waitress!

"Is it legal for restaurants to keep servers on the floor without a lunch break?"

Welcome to the wonderful world of unregulated labor. In general, it seems to be non-unionized blue collar workers who suffer the most indignities and abuses. Non-unionized white collar workers, such as administrative assistants in offices, are generally able to use the bathroom and eat lunch without all holy hell breaking loose.

Federal law does not require lunch, snack, or rest breaks.

Under federal law, short breaks (for example, five  minutes or twenty minutes) are compensable. So, if you are lucky enough to have an employer who will let you sit for a few minutes and wolf down some protein at some point over the course of six or seven hours you don't have to clock out.

A meal break that is at least thirty minutes long is not compensable, so the employee would clock out for an actual lunch break. However, the federal government does not require that the employee be given a lunch or meal break. 

The federal government, in it's infinite wisdom, leaves it up to each of the fifty states to either leave well enough alone, or grant workers the right to breaks. 

The state of California is a good example of a state with worker rights to breaks. Employees must have a paid rest period of at least ten minutes for every four hours worked. Not only that, the rest period must be in the middle of shift. Employers can not get away with forcing workers to take a break at the beginning or end of the shift:

"... employers must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period."

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Waitresses at Hooters in California won a class-action lawsuit which, among other things, forced the employer to start obeying rest break laws. Of course, the California Restaurant Association ("CRA") had the amusing reaction of saying that the poor employees now had to take unwanted breaks (boo, hoo) instead of "making a decision that works for them." 

One problem with that argument is that had the waitresses been able to "make a decision that works for them," they would not have needed to sue to get their rights to breaks enforced. The wording in the CRA quote is sinister, because often the decision that worked for them was to not take a break, because taking a break meant weakness and loss of her job. 

Back to unregulated labor in unregulated states. Unregulated laborers are working in the Dark Ages. One of the things that upsets me the most is that smokers get breaks to smoke, and non-smokers get nothing. I never get to go outside and take an "air break." And, yes, I am addicted to air. 

I remember one shift in the little diner; two waitresses (one was me) and the owner. Just got through a busy time in the shift; all the tables had to be cleared. What does the other waitress do? Goes outside to smoke. Did I clear her tables? Not a chance. The owner even was irritated at the other waitress' timing. As a fellow non-smoker, she said she felt that smokers had it easier because they took breaks. Not that she did anything about it. 

Of course, if I had decided to take up the deadly habit, then I could have gone outside and put my feet up for a few minutes, as well. Which is only part of the temptation for new waitresses to start smoking. 

Nicotine is an appetite-suppressant. So, a worker with no right to do something as reasonable and necessary as eat something during the course of the day or night might be tempted to inhale the drug and quell her rumbling stomach. Plus, she gets to hang out and chat with the other smokers, you know, the only waitresses who get to take a break in some restaurants. 

Of course, different employers in unregulated states may choose to offer benefits that they are not required to offer. In that same diner, I was given a free meal each shift I worked. The boss was under no obligation to offer that. The point is that workers have no expectation of being treated well in unregulated states. 

And none of this is an attempt to offend or insult smokers. We all know that smoking is dangerous, unhealthy, and physically addictive. My point is that the lack of rights to breaks at work actually encourages workers to start what will be a life-long habit that may shorten and end their lives. The more draconian the employer policies, the more likely people will "need" to smoke. 

How about ensuring that all workers get reasonable breaks, and let them breathe some fresh air, instead? Just a thought. 

Thanks for Asking the Waitress! 


  1. Texas does not require breaks, and all of my employers have taken advantage of that at some point. Surprisingly, Schmarden has been extremely good about telling us that they cannot guarantee us a break while also making great efforts to ensure that we can at least eat something, and usually take a break too. All off the clock, of course; we must clock out under the "meal break" function while eating and/or on break...but it's certainly better than battling to get that privilege. I also wrote "right," how silly of me. It should be a right...13 hour days with no breaks are criminal.

    1. Almost, not also. Late-night typos...

    2. "Schmarden," LOL.

      The wording by the federal Department of Labor is such:

      "Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the work week and considered in determining if overtime was worked."

      So, it seems as if making you clock out for fifteen minutes may actually be a violation. If not, then you would still have to start earning overtime as if you had been paid for that break. Schmarden may be splitting a hair, or possibly just breaking the law by making you clock out for short periods.

      Thirteen hours on your feet with nary a break? "Criminal" is too kind!

    3. To break at our Schmarden you must be working a split or double shift. It is just common sense to expect A lunch or dinner break- to actually leave the place for an hour anyway, between shifts. Otherwise they should call it a "long shift" or something..Serving shifts are not supposed to be 10+ hours long..I was shocked that there are no laws in TX regulating anything-literally all an employer has to do now is provide an outhouse and a water hose and your legal..I'm not joking, it is true..

    4. I just suffocate in our tiny windowless stinky break room and will not pay to eat there..they do make money off those many server meals even at half off..I tell them I have to leave to eat, and I do-luckily I live 10 minutes away..

  2. I really wish that more of the customers we serve knew about these little loopholes in the laws. I have simply never worked in a place that allowed breaks other than the "end of the shift, 50% off meal..."

    However, I def picked up smoking while waitressing. & When I quit, I never told the managers or the host staff. I simply kept taking my smoke breaks like before. It's true, only the smokers get mid shift breaks.

  3. It's things like this that serve as the greatest argument on behalf of unions.

  4. Is it right for an employee to be at work at 440 am when you don't get paid till 5 am

    1. If you are required to be at work at 4:40, then you must be paid starting at 4:40.

  5. It's not called a smoke break. It's a rest period and you are entitled to it whether or not you smoke. It's not the smokers fault you don't assert your rights, it's yours. I'm a smoker and have been a server for 13 years. To imply that lack of breaks encourages people to take up smoking is just ridiculous. For the record I don't get "smoke breaks." Also, I work my 6 hour shift with no breaks just like you nonsmokers. How's the air up there on your horse?

    1. The air up here on my horse is in a different state than the air under the rock you call "home." I am guessing you are in California, in which you do get a ten minute rest period, which is a paid break, for every four hours worked. There are a few other states that are less draconian than the rest of the country.

      Please work on your critical reading skills. Not only do I do an excellent job of clarifying between federal an state laws, I also source my research. Before insulting me, you might try doing a little research and educate yourself. If you can't do that, then remember this:

      "Better to remain silent and be thought a fool, than to speak and remove all doubt." (Oscar Wilde, I believe.)


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