I received the following question from the Ask a Question page:
In Virginia, When Do Employers Have To Give Employees Breaks?
This question has the potential to appear deceptively simple, so let's start with the general rule and see if it applies in all cases.
In General, A Virginia Employer Is Not Required To Give Employees Breaks.
What?! Can this be true? My employer can require me to punch the clock at 8:00am and leave at 8:00pm without any breaks? Well... yes. But there are some important caveats. Let's start from the general rule and then discuss the exceptions.
We start with the familiar principle of at-will employment. If you don't know already, Virginia adheres strongly to the principle that the employment relationship is entirely voluntary. This means that an employer is free to end the employment relationship at any time, and for any reason. In practice, this generally means that employers are the masters of the employment relationship, free to set the terms and conditions in the way that best suits their business interests.
When looking at the issue of breaks, this means that the employer can discipline or terminate an employee for taking breaks, absent some exception found in law (the law loves exceptions). So then the question becomes, are there any exceptions to this general rule? There sure are.
Virginia Requires that Employers Give Children Under Sixteen Half-Hour Breaks for Every Five-Hour Work Period.
Let's start with the simplest exception: Virginia Code Section 40.1-80.1 makes it illegal for employers to require or allow children under the age of sixteen to work for five hours without at least a 30-minute break. This law and other restrictions on when and how much children may work are enforced by the Department of Labor and Industry, and employers who violate it are subject to a fine up to $10,000. If you know of a violation, you can report it by contacting the Department's Labor and Employment Law Division at (804) 371-3104 ext. 131 or by emailing the Division.
So children under sixteen get mandatory half-hour breaks, but what about everyone else? Again, we need to look for exceptions. Next, let's discuss an exception found in federal law.
Federal Law Requires that Employers Give Nursing Mothers Breaks to Express Breastmilk.
In 2010, with the passage of the Patient Protection and Affordable Care Act (affectionately called "Obamacare"), the Congress required employers to give new mothers breaks so that they could pump breastmilk. You can find the statutory language at the Department of Labor's site. Here's what the law requires:
Working mothers are entitled to a reasonable time to express milk each time they have a need to do so, and employers must provide the mother a location to do so that is not a bathroom and that is shielded from view and free from intrusion. Employers do not have to pay employees for the time spent expressing milk. The employer's obligation to provide breaks for nursing mothers ends on the child's first birthday.
When an employer violates this rule or retaliates against an employee who complains because an employer fails to give the required break, an employment attorney like me may be able to help remedy the situation or secure for the employee damages like lost wages and attorneys' fees. If you or someone you know is facing this situation, set up a case evaluation with J. Madison PLC.
Federal Motor Carrier Safety Administration Regulations Require Breaks For Certain Drivers.
Some drivers are also entitled to breaks. Federal Motor Carrier Safety Administration Regulations require motor carriers to limit the hours of covered drivers. Here's a breakdown of the rules. First, let's look at the rules for drivers who carry property (as opposed to passengers):
- Property-carrying drivers must be off-duty for ten hours prior to commencing a shift;
- Property-carrying drivers' shifts are limited to an 11-hour shift occurring within a fourteen hour period (so one or more breaks are required at the beginning, end, or middle of the fourteen-hour period); and
- Property-carrying drivers must have at least a 30-minute period off-duty or in a sleeper-berth whenever 8 hours have passed since the last the last 30-minute off-duty or sleeper berth break
That's complicated! How about for drivers who carry passengers? Let's take a look:
- Passenger-carrying drivers must not drive for more than ten hours following an eight-hour off-duty period; and
- Passenger-carrying drivers are not permitted to drive once they have been on-duty for fifteen hours, until they have a consecutive eight-hour off-duty period.
Both types of drivers are also subject to maximum driving limitations during seven- or eight-day periods, and drivers and their employers should make sure they understand the regulations before placing drivers on the road. This is probably a job for your in-house counsel. A full copy of the regs is here.
Disabled Employees Might Be Entitled To Some Breaks.
Disabled Virginia employees are protected by two laws, the Americans with Disabilities Act (ADA) and the Virginians with Disabilities Act (VDA). And federal government employees and contractors (and employees in programs receiving federal funds) in Virginia are protected by the Rehabilitation Act. These don't explicitly require breaks, but they do require that employers give qualified employees reasonable accommodations that are not an undue burden on the employers.
Federal Courts in Virginia have recognized that allowing disabled employees short breaks can satisfy the obligation to provide a reasonable accommodation, in some circumstances. Of course, this depends on the specific disability, and many disabled employees don't need breaks; they need other accommodations. Being disabled does not automatically entitle an employee to additional breaks, but a period of break time might be a reasonable accommodation in a particular case.
When an employer violates the Rehabilitation Act, the ADA, or the VDA, employment attorneys like me can often help the employee secure the accommodation they need or achieve damages and attorneys' fees. If you or someone you know is facing disability discrimination at work, including termination or a failure to accommodate, set up a case evaluation with J. Madison PLC.
Union Employees May Be Entitled To Breaks Under Their Collective Bargaining Agreements.
Unions negotiate with employers to secure rights for their employees, and break requirements are common in collective bargaining agreements ("CBA"). Unionized employees should review their CBAs and speak with their union representatives to understand their rights under their CBA and how to enforce them.