May 30, 2024
Hi Jennifer,

Does an employee have to take lunch break within an 8 hour shift? We have always required it, but we now have an employee saying he doesn't want to and isn't required to. Does he have the right to waive the requirement to take lunch. 

In New York, and certain other jurisdictions, workers are required to take their legally proscribed breaks.  Under Labor Law Section 162, available at workers are entitled to:

  • A 30 minute lunch break between 11:00 a.m. and 2:00 p.m for shifts 6 hours or longer
  • A 45 minute lunch break in the middle of the shift for shifts starting between 1:00 p.m. and 6:00 a.m. that are longer than 6 hours
  • An additional 20 minute break between 5:00 p.m. and 7:00 p.m. for workdays that extend from before 11:00 a.m. to after 7:00 p.m.

Even if an employee protests having to take their lunch break, they are still required to take it. Employees cannot opt out of their meal period.   The prudent move is to enforce employees clocking  out and clocking in for their proscribed lunch break, or break periods, so, if ever needed on audit, you have a record of compliance.   When defending, it is essential we have access to supporting documentation verifying break times...