Arizona Break and Lunch Summary
General Rules on Arizona Break and Lunch Periods
Under Arizona state law, employers are not required to offer employees breaks or lunch periods. However, if they do so, they must comply with the following provisions:
For work periods of more than three and less than four hours, employers may provide one paid 10-minute rest break for each four hours of work performed.
For work periods of more than five continuous hours, employers must provide a minimum 30-minute unpaid lunch or meal period.
If a minor employee is working more than five continuous hours in a day, employers are legally required to provide him or her with a minimum of a 30-minute unpaid rest or meal period. However, if the minor and employer’s general practice has been to give minor employees a paid break , then the employer cannot change his or her practice for that employee without violating child labor laws.
Employers are not legally permitted to provide an employee with one, continuous paid 20-minute break at the beginning of a workday, then require him or her to work a continual five-hour, unpaid length of time following the 20-minute break. Employers can only give a paid 10-minute break to employees as described above, and must do so for every continuous 4-hour period worked. Additionally, while the standard 30-minute break can be taken by employees at any time, minimums must be met for any period exceeding five continuous hours of work. For example, employees may take a 60-minute unpaid break; however, any time spent in excess of 30 minutes must be classified as unpaid.
Duties of the Arizona Employer
Employers must pay employees for "all hours worked," which includes "time off for meal breaks based on the type of meal break," as well as "time off for other rest or recovery periods which are counted in accordance with the type of rest break." Arizona Revised Statute § 23-362(D)(1)-(2).
"Time off for meal periods" and "time off for other rest or recovery periods" references lunch periods and other rest/meal breaks. With respect to each type of time off, employers have some options.
Lunch periods
Employers are considered to provide employees a "meal" if they do any of the following: (1) enhance the quantity of time an employee may spend at the table without regard to responsibilities as an employee; (2) cause or allow an employee to be relieved from performing assigned duties for an uninterrupted period of at least thirty minutes for the purpose of eating a meal, and the time is long enough for the employee to eat the meal; (3) no matter how little control the employer has over the time and place of an employee’s meal, the employer nonetheless allows for a meal that is long enough for the employee to eat the meal, and the employee eats the meal; or (4) cause an employee to be relieved from performing assigned duties for an uninterrupted period of less than thirty minutes for the purpose of eating a meal, whether or not the employee eats the meal during the time.
The law refers to this time as a "lunch period." The statute goes on further to say that:
(i) A meal period lasting less than thirty minutes is not counted as hours worked unless:
(I) An employer requires an employee to remain on duty on the premises or otherwise compensates the employee for the meal period; or
(II) An employee is free to leave the premises and does not perform any duties while at dinner and work will resume after the meal period. Arizona Revised Statute § 23-362(D)(2)(a)(1)-(2).
The statute also contains a safe harbor provision. Even if the employer does not give an employee a specified meal period, there is no penalty if the employer is unable to provide a meal period due to operational necessities.
Rest/Meal Breaks
Employers also must provide "rest or recovery periods" outdoors when feasible if the outdoor temperature is above seventy degrees Fahrenheit and the natural humidity exists. Section 23-362(D)(2)((C). These breaks must be counted precisely in accordance with the method set forth in the statute.
For example, if an employer schedules fifteen-minute rest or recovery periods in each four-hour shift, it must allow the employee to take a break sometime during those four hours. "The rest or recovery period is counted as hours worked for the calculation of overtime if employee time records are kept." ARS § 23-362.D(2)(b).
If an employer, instead, gives employees rest breaks that do not more than 15 minutes in each four-hour period, it must give the employee an additional ten-minute break in the second half of each four-hour shift; however, it can thereafter allow the employee to leave "ten minutes early" at the end of the shift. ARS § 23-362(D)(2)(c). In other words, the time off each four hours must be at least 25 minutes, but the employer can provide time off with more flexibility.
Rest/Meal breaks during certain emergencies
If an emergency occurs that renders an employee unable to take a meal or rest break, and the emergency prevents the employer from giving the meal or rest break to the employee, the time off will not be counted as hours worked if the following conditions are satisfied:
(i) When a meal period is interrupted, an employee must be allowed to return to the table and receive the unserved segments of the meal or, if the remainder of the meal is not served, the employee is to be given a replacement meal or an equivalent meal within the time reasonably necessary to serve a meal;
(ii) If a rest or recovery period is interrupted, the employee must be allowed to return to full duties, or be permitted to receive a meal or a rest period in the following workday or at the next available opportunity in accordance with the type of rest break;
(iii) If it is not possible to reschedule the time off, there must be a declaration of emergency by the person or entity having jurisdiction of such a declaration. ARS § 23-362(D)(2)(d)(D).
Under the safe-harbor rule, even if an employer fails to provide a lunch or other rest/meal break, it will not be penalized if the employer was unable to do so due to emergency circumstances. The statute expressly provides that "natural storms or precipitation" are not emergencies. ARS § 23-362(D)(2)(d)(D).
Application
The safe-harbor rule, emergency provisions and flexibility of the meal and rest break rules demonstrate that the law is very much pro-employee, favoring flexibility whenever possible. Employers should take this guidance into consideration when attempting to determine its policies concerning breaks and lunches.
Next week I will discuss whether employers escape penalties if they use common practices such as rounding time up an employee spends in rest periods so that the time is rounded down to the nearest 5, 10 or 15 minutes.
Rights of the Arizona Employee
Employees in Arizona have a right to reasonable breaks and lunch periods. The FLSA governs most of these areas, and if you are entitled to a break or lunch period under federal law, then your Arizona employer must also provide that time to you.
Under the FLSA, an employee is entitled to a paid, uninterrupted break of no less than fifteen (15) minutes for every four (4) hours they work. Thus, employees who work a full day are entitled to two (2) fifteen-minute breaks per day, and employees who work a half-day are only entitled to one (1). For example, a typical eight-hour day for Arizona employees would include two fifteen-minute breaks and a thirty-minute unpaid lunch period. Keep in mind, though, that you must actually be relieved of all work duties during your unpaid thirty-minute break. If you are expected to stay on premises and be available to your employer in any way during your lunch period, then your lunch is considered paid work time.
Likewise, under federal law, you are entitled to one (1) thirty-minute unpaid meal period for every five (5) hours worked in a day, if you are relieved of all work duties during that time. Federal regulations state that "if the employer is unable to prevent employees from performing their duties during a meal period, and if the employees are required to perform any duties, whether active or inactive, during the meal period, the meal period must be counted as hours worked." Federal laws do not prevent employers from providing you with more than one (1) thirty-minute unpaid meal period per day, so long as you are considered actually relieved of duties for the entirety of your unpaid lunch. Again, if you are expected to stay on board and available to your employer during lunch, the time is considered paid work.
Arizona Exceptions and Special Rules
There are special circumstances in which the usual rules for breaks and lunches do not apply. For example, if you are a "retail or service industry employee," the lunch break may be shortened from the usual 30 minutes to 20 minutes. To qualify as a "retail or service industry" employee, one must be employed in an occupation defined by industry standards as "retail, restaurant, or food service industry." The substantive requirements on employers specifying what occupations constitute "retail or service industry" employees are found in A.R.S. § 23-392F. For instance, retail or service industry employees must be compensated based upon a fixed hourly rate for hours worked in that day, and sales must account for less than 25 percent of the employer’s gross revenue .
Additionally, while no breaks are mandated for employees who work less than six hours in a shift, in limited circumstances an employee may qualify for a three-hour shift exemption and still be entitled to a meal period if their shift is less than three hours.
Marijuana legalization laws created exceptions to Arizona’s general breaks and lunches rules. For example, Rule R20-5-D inland carriers are exempted from the general breaks and lunches requirement when transporting marijuana in both medical and recreational contexts. Additional information concerning the basic requirements of the Arizona Department of Health Services and the Marijuana Consumer Law concerning medical marijuana applications, cards, dispensaries, and cultivation can be found at the Arizona Department of Health Services website. Rules R20-5-D and R20-5-M are limited to carefully regulated licensed employers, and do not apply broadly to all employers or workplaces.
Other Break and Lunch Laws: Arizona Versus Other States
In considering the differences between the Arizona break and lunch requirements and those of other states, it’s important to remember that both state and federal labor laws govern these issues. And while the terms "breaks" and "lunches" are commonly used when describing the two, the Arizona law allows for the first shift of work to last up to five hours and still require only one rest break (the lunch may then be taken at any time during the shift).
Arizona’s work period requirement states, any employee working more than five consecutive hours is entitled to a thirty-minute meal period. Employers are allowed to include the time the employee uses to walk to and from their workstation when calculating that 30-minute period.
The majority of states allow the employee to determine the timing of when they will take a lunch; however, three other states do require scheduling. In Maine, meals must be scheduled to occur within 31/2 to 51/2 hours from the start time of the shift. New York has the most stringent requirement, mandating an employee’s lunch break be taken in the middle of the shift, no less than 4 hours before and no more than 6 hours into the work period. New Hampshire also has a scheduled lunch break requirement – 30 minutes within 5 hours.
When it comes to breaks, there are fewer similarities among other states. Only seven states have break requirements that are as common as Arizona’s 15-minute break every 2 hours. Indiana has one of the few mandatory paid break requirements. Like Arizona, Arkansas, Florida, Hawaii, and Minnesota also have 15-minute break requirements, but they don’t mandate a break for every 2-hour period worked. The remaining states with break requirements vary, such as Connecticut, where the only required break is one 30-minute unpaid and uninterrupted break for retail employees who work more than 7.5 consecutive hours and New York, which mandates a break for employees scheduled to work more than 6 hours. If more than 20 employees are scheduled to work the same shift, it doesn’t require a break at all; if fewer than 20 employees are scheduled to work over 6 hours, it stipulates that the rest break must occur no less than two hours before the end of the shift. Only the Court of Appeals for the 10th Circuit has definitively stated that rest breaks aren’t required. However, there are also states, such as California, where it is considered "best practice" to offer them.
Discussions amongst state and local lawmakers about whether breaks should be mandatory or voluntary seem to consistently trend towards voluntary. But, in recent years, there has been some movement in the opposite direction – they’ve either made a relatively new mandatory requirement stricter, such as in New York or revoked the break requirement altogether, like in Arkansas.
The Latest Amendments and Judicial Rulings
For the most part, Arizona employers are still subject to the State’s long-standing law on breaks and lunches, which includes details on the required frequency and length of breaks. However, the State’s case law is constantly developing, as state and federal courts strive to apply legislative intent to real-world situations. A new law that was recently enacted is beneficial to employers who have been subject to recent class action lawsuits relating to breaks and lunches. Under this new law, even if an employee works through a lunch, the employer does not have to pay him/her for time worked during the employee’s "uninterrupted authorized meal period." The statute does not require employers to monitor whether or not employees are actually taking their breaks for them to be unpaid. Although this statute should make it more difficult for employees to successfully bring wage claims against employers based on missed/shortened meal periods, it is not yet certain how this new law will be applied by courts.
While employers should be relieved to have some assistance with defending against allegations of unpaid wages tied to breaks and lunches, it is not fully clear how the courts will interpret this new law. The law states that: "meal period[s] … may be unpaid so long as the employee is relieved of his or her duties for the entire meal period and such period is authorized." The first half of this language ("so long as…") strongly suggests that the "authorization" can be temporary and can be revoked. The second half may indicate that it is not. The second half says that the meal period is authorized if the employee is relieved of his/her "responsibilities" for the duration of the meal break. This would support the suggestion that an employer could authorize an employee to take a meal break but hold that authorization in reserve until such employee actually leaves his/her responsibilities for the full period.
Some state courts that have examined the validity of meal periods to establish exemption from overtime have interpreted the phrase "relieved of work responsibilities" to mean that the employee cannot do any work during the meal period (though this is not an across-the-board holding). Courts have held that an employee is not relieved of work responsibilities if he/she is expected to , or actually does, perform any work within the space of time that is supposed to be spent on the meal break. Nor may employers simply presume that employees are relieved of all work-related duties when they clock out for a meal period. Courts have also held that employers bear the burden of showing that the employee is completely free from duties during the meal period; otherwise, the employee will be paid for the time spent on the meal break. Courts can be hesitant to believe employee testimony, even when he/she is completely credible, that he/she was relieved of all duties if the "evidence" is that he/she was "genuinely" free from tasks—which is what an employee always would claim—but for whatever reason never left the premises to take the meal break.
It is not clear that the Texas-style meal period law enacted in Arizona will survive judicial scrutiny. Of crucial importance will be the context in which the law is invoked. If it is invoked by an employee to preclude overtime premium pay for meal periods at work, the exhaustion of all administrative and judicial remedies will have occurred prior to the enactment. If the law is invoked to defeat class treatment of a wage claim based on meal periods, it will have to prove attractive to the court. One difficulty for the employer will be that most courts will view the law as benefitting only the employer and placing costs on employees. This will make it difficult for the court to reconcile its decision with either an expansive view of legislative power or an unflinching application of the plain meaning of the statute.