Human Resource Blog

New Mexico Break

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Can a New Mexico 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?

You are correct that there is no New Mexico or federal law that requires employers to give breaks to workers over the age of 18, in most industries. It doesn’t matter whether it’s a paid coffee break or an unpaid lunch break, the employer has no obligation to allow the worker to leave the premises during that time.

Imagine the problems that could result if a worker were to leave the premises during a paid break.

First, workers are generally covered by Workers’ Comp insurance when they are being paid (or “on the clock”). But if the employee got into an accident while on paid break and away from work, it’s unlikely that the insurance company would pay Workers’ Comp. It would decide that, because the employee was off the premises, she or he was not “working” at the time of the accident.

But what if the employee caused an accident or otherwise set up a liability situation? In that case the employer could be facing a long, expensive, and complicated lawsuit. It’s possible that the employer could be found liable in this case because the worker, who was being paid, was therefore technically “working” at the time of the mishap.

It should be noted that because New Mexico has no break law, the federal Fair Labor Standards Act (FLSA) is the guiding legislation. Under the FLSA, short breaks of 5 to 20 minutes must be compensated for. In other words, the employee must be “on the clock” during those times.

Also according to federal law, employers need not pay for unauthorized extensions of those breaks, particularly if the extension is expressly against the company’s work rules and that the employee is fully informed of the consequences.

Federal law also states that “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.” According to law, breaks of longer than 20 minutes - such as lunch breaks - need not be compensated for.

While the law does not even guarantee either coffee or lunch breaks, employers have found that offering such breaks enhances employees’ productivity. JH