Human Resource Blog

Lunch Breaks

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A company gives smoke breaks and lunch breaks to some employees and refuses breaks to others. Is this considered an unfair labor practice?

First of all, in Human Resources, the phrase “unfair labor practices” refers to a very narrow portion of the law regarding labor relations, usually relating to labor unions. If a company hires thugs to assault or kill union organizers, that’s an “unfair labor practice.” The term doesn’t really apply in this case.

Is this practice fair and legal? It may or may not be, depending upon the circumstances. A few states have laws requiring breaks for adult workers. Most do not. Both state and federal laws require breaks for workers under the age of 16.

This practice may be illegal if it is used to discriminate against someone based on race, color, religion, national origin, or sex. Employees who are over 40 and those who are pregnant or disabled are also protected. So an employer, who gave smoking breaks to Caucasian drill press operators, but not to African American drill press operators, would be committing illegal discrimination. On a federal level, these laws are enforced by the EEOC, the Equal Employment Opportunity Commission.

A number of states have stricter discrimination laws.

Under both state and federal laws, workers in protected groups must be treated the same as others. This includes hiring, pay, promotions, and working conditions. Taking breaks or not taking breaks is a working condition.

This practice may be legal if it is based on genuine business needs, rather than the supervisor’s whim. Often, this means that everyone who has the same job, receives the same treatment.

At a factory that produces widgets, secretaries in the office may be permitted to take smoke breaks while workers on the factory floor are not. That’s because when factory workers take a break, it slows down the entire line, and results in fewer widgets being produced. When a secretary takes a break, she just types faster upon her return and still gets all her work done. In this case, there is a legitimate business need for the factory workers not to take breaks.

However, there may be times when employees with the same job title can legitimately be treated differently.

Here’s another example. Suppose a small hotel only has one desk clerk on each shift. Desk clerks who work the 7 am to 3 pm shift or the 3 pm to 11 pm shift can take a lunch or smoke break, because there is a supervisor or manager available to relieve them.

However, on the 11 pm to 7 am shift, there is usually not a supervisor or manager working. This means that employees on that shift could legitimately be denied smoking and meal breaks. They can’t leave the front desk unattended, so there is a valid business need for them not to take breaks. This is both legal and fair.

If there is a union contract in place, it probably sets standards for breaks and should be followed.

Please post a question with more details, mentioning the state, for a more specific answer.