Working Through a Break Doesn’t Mean OT: How Texas Determines Break Pay

Galvin B. Kennedy
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Galvin Kennedy is a founding partner of Kennedy Hodges. He focuses his practice to overtime and wage claims.
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The Fair Labor Standards Act (FLSA) upholds oil workers’ rights for fair wages and safety, but it does not specifically outline terms of payment, nor specific work hours. This means that employers have the right to distinguish their own rules and regulations pertaining to the definition of “hours worked” when calculating overtime pay. One of the most contested definition distinctions deals with the notion of paid vs. unpaid breaks.

Employee breaks are technically not required by the FLSA; however, many employers feel that employees work more efficiently when given rest periods. Therefore, the majority of employers will provide standard rest breaks. However, just because breaks are provided, doesn’t mean that they are considered “work time.”

Texas Break Distinctions: Paid vs. Unpaid

Although break distinctions may not seem like a big deal, determining work time and off time can become extremely important when calculating overtime. Considering how OT is only awarded for work time accumulated over 40 hours, knowing which breaks are paid and which aren’t can affect the calculations. Therefore, if you worked through a break, if it was considered an off-time (unpaid) break than it wouldn’t affect your OT; however, if it was a work-time (paid) break, the time can be added to your 40 hour week tab. 

So how do employers distinguish between work (paid) and off (unpaid) time? According to the Texas FLSA break guidelines, they’re determined as follows

  • Lunch breaks (unpaid) – Lunch breaks are required for all employees working longer than six hours. Employees must be completely off-the-clock and refrain from doing any work-related duties. If the employee is forced to answer questions, take tests, or perform any duties while eating, the "break" is counted as regular work time with pay.
  • Coffee or rest breaks (paid - if provided) – Although coffee breaks aren’t required by FLSA laws, the majority of employers will grant 15 – 20 minute on-the-clock rest breaks since they promote employee productivity and efficiency.
  • Maternity breaks or breast pumping breaks (unpaid) – Under the 2010 health care reform bill, FLSA section 207(r)(1) requires employers to give non-exempt nursing mothers reasonable break times to express breast milk during the first year after the baby's birth.
  • Smoke breaks – Smoke breaks aren’t required under Texas or federal law; individual employers can provide smoke breaks under their own discretion and can determine the conditions.

Fueling the Debate Over Break Times and OT

Do you think 15-minute breaks should be mandatory during eight hour (or more) work periods? Since 15-minute breaks are not required by the FLSA in Texas, but are in different states, should not taking a break be considered overtime?

Share your thoughts and opinions about break periods and overtime neglect in the comment section provided. You’re not the only one who feels strongly about big Texas oil corporations misusing their employees while denying them proper OT pay. By sharing your thoughts, you can help others like yourself get the support, information, camaraderie, and courage they need to fight back.

Need more information about your overtime rights? Please feel free to request our free guide, Protect Your Paycheck and Obtain the Money You've Earned! You can also contact us directly, or follow us on Facebook and Google+.


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