Human Resource Blog

South Dakota Break

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Can a South Dakota employer legitimately establish a policy that workers may not leave the premises on their breaks? I realize that breaks are not legally required, but if they are given, can the employer set limits on what an employee can do during his or her break time?

The law is on the side of the employer in this case. There is no federal or South Dakota law requiring employers to allow workers to leave the premises during break time. The U.S. Labor Department, in fact, says an employer can even require workers to stay on the premises during an unpaid meal break lasting a half hour or longer.

Because there is no South Dakota law, the federal Fair Labor Standards Act of 1938 applies.

Under the FLSA, employers are not required to give lunch or coffee breaks. Such breaks are given because they increase productivity, not because the law requires it.

But short breaks of 5 to 20 minutes must be compensated for, according to federal law. Meal breaks (which usually last a half-hour or longer) need not be paid for, according to the law, because they serve a different purpose and are not work time.

Federal law states that employers need not pay for unauthorized extensions of work breaks if the extension goes against company rules and if the employee is aware of the rules and the punishments for infractions.

And about unpaid meal breaks the law says “It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.”

Allowing an employee to leave the work site during a paid break could result in all sorts of legal problems and liability issues.

For example, workers who are “on the clock” are covered by Workers’ Comp. If the employee were in an accident, the cost would probably be the employer’s. That’s because the Workers’ Comp insurance company would determine that because the employee was off the premises, he or she was not technically “working” at the time.

On the other hand, if the employee caused a car accident (or some other liability issue) the employer could face a major lawsuit. In this case it might be determined that the employee, who was being paid, was technically “working” at the time. It could be a long, drawn out and costly legal process. JH