About Michigan’s Breaks and Lunches Law
Michigan employment law regulations outline general provisions concerning breaks and rest periods as follows:
First Shift. Each employer shall provide at least 30 consecutive minutes for the first shift for employees having a work period of at least 3 1/2 hours but less than 5 hours, and 60 consecutive minutes for employees having a work period of at least 5 hours for employees employed for a work period of up to 8 hours.
Second Shift. Each employer shall provide at least 30 consecutive minutes for the second shift for employees having a work period of at least 3 1/2 hours but less than 5 hours, and 60 consecutive minutes for employees having a work period of at least 5 hours for employees employed for a work period of more than 8 hours but not more than 12 hours .
Third Shift. Each employer shall provide at least 30 consecutive minutes for the third shift for employees having a work period of at least 3 1/2 hours but less than 5 hours, and 60 consecutive minutes for employees having a work period of at least 5 hours for employees employed for a work period of 12 or more hours.
The law applies to employers, who must provide employees at least a half hour off from work "for a rest period during the first shift, and which is consistent with the requirements of section 419. These regulations do not apply to employees engaged in certain types of manual labor, such as mining.
Breaks Required by Michigan Law
Breaks and Meal Periods: Legally Required Breaks in Michigan
Michigan law, unlike federal law, does require employers provide employees with breaks. However, not all employees are entitled to breaks, and the length of the breaks varies depending on the employee’s job duties.
For most employees covered by Michigan’s Breaks and Lunches Law an employer must provide an employee with a ten (10) minute rest break for every three (3) hours of work. In general, this ten (10) minute rest break is required to be paid.
Employees that work in the following situations are exempt from the state law requiring rest breaks:
Employees in the above scenarios are still entitled to meal periods under Michigan law; however, the law does not set any requirements regarding the length or frequency of the meal periods. Generally, though, a meal period is required after a sufficient amount of hours has worked. This minimum amount of hours varies depending on the establishment:
It is important to note that unless otherwise prescribed in a written policy, an employer is not required to compensate employees who take meal periods or rest periods.
The bottom line: Employers should be aware of the unique provisions of Michigan’s Breaks and Lunches Law as they apply to their business.
Lunchtime Laws, Rules and Regulations
Under both state and federal labor laws, lunch breaks are treated as legal "nonworking time." This means that employees do not have to be paid for this time. Lunch breaks (i.e., rest periods of thirty (30) minutes or more) in Michigan workplaces must be unpaid if the break occurs between the third and eighth hours of an employee’s shift. If the break occurs earlier than the third hour, or if it lasts less than thirty (30) minutes, then the employee must be paid. In addition, under state labor law, an employee who works more than five (5) hours that day must receive a meal period "of not less than thirty (30) minutes unless the employee’s daily work period is completed in six (6) hours or less," and the employee and employer mutually agree in writing to waive the meal period.
If an employee starts work shortly after midnight and then works a full shift, this rule applies and the lunch break must be at least 30 minutes. Many employers have policies stating that they will provide at least one paid ten (10) minute rest period for every four (4) hour work period (or major portion thereof). However, an employer must allow an employee to voluntarily choose to take a meal period of up to sixty (60) minutes if the ten (10) minute rest period is not taken.
Employers should note that federal law, specifically the Fair Labor Standards Act (FLSA), requires employers to pay employees for all time worked, but does not require an employer to give a meal or lunch break. If you do require your employees to attend working lunches, think twice about requiring them to clock out during these times — if the work performed at these meals is "necessary" to your business, you should pay your employees for this time.
For example, what if an employer requires hourly employees to clock out fifty (50) minutes early from their shift, in order to attend a meeting with customers that the employer characterizes as "necessary"? The employer obviously receives a benefit from the time spent with the customers. In such a case, the FLSA regulations require that the employees should continue to be compensated for the time spent with customers, and the employer may not engage in "time shaving" (e.g., requiring the employees to clock out) in order to reduce its payroll obligations. For this reason, employers should exercise caution when attempting to curb employees’ meal and break times.
Variances and Special Scenarios
The regular breaks and lunches provisions do not apply to certain occupations. Employees in a fast food business and "tourist areas" are exempt from the 20-minute paid break requirement. Employees older than 18 who work no more than 5 hours do not need a rest period. Farm laborers and employees of any charitable and non-profit organizations are also exempt from the breaks and lunches provisions.
Employees who are under age 18 are also subject to special rules. Minor employees do not have to be allowed a break to eat a meal. Teenagers who work for no more than 6 consecutive hours in the day must be allowed a 30-minute unpaid meal period. Employees who work more than 6 hours in a day must be allowed a 60-minute meal period, unless they prefer to take two shorter meal periods.
This law does not apply to certain specific professions such as: salespersons and collectors who work away from the employer’s place of business; workers in hotels, motels or restaurants where a majority of the service workers are tipped employees; or emergency service workers – such as firefighters or law enforcement personnel. Employees who work as mechanics, repairmen or servants in the employer’s home are also exempted.
Differences Between Federal and Michigan Break Laws
Federal law does not require employers to provide any breaks or lunches to employees, although if breaks of less than 20 minutes are voluntarily provided, federal law requires that workers be paid for all hours worked. However, employers may voluntarily adopt workplace policies that provide for breaks and lunch periods. Such policies may not violate state laws (such as Michigan’s break and lunch law in MCL 408.412), other federal laws (such the Family Medical Leave Act), or the employees’ contracts (if there were any that would apply). The first version of the Fair Labor Standards Act [‘FLSA’] was passed in 1938, when the concept of a federally-mandated break or lunch period was not even under consideration. Therefore, no federal law will ever supersede a state law that does require breaks or lunch periods. The FLSA provides in Section 203(d) that states are free to adopt or enjoin more stringent workplace regulations, including those concerning breaks or lunches. However, based on an issue of are codified at 29 CFR 785.13. Unfortunately, these regulations are somewhat contradictory when it comes to the 20-minute rule. On one hand, the FLSA requires that employees be paid for all time under employer control or observation, and does not ever exempt "meal" periods. On the other hand, the FLSA also provides that "short" periods of time, which it defines as 20 minutes or less , do not count as time under employer control. These two positions contradict each other, because if short periods of time are always deemed to be outside the FLSA, the lunch period is hardly ever under employer control, meaning that employees should be paid during that time. At least one United States Circuit Court of Appeals has refused to defer to that regulation because the language of the regulation has never been made clear. The U.S. Sixth Circuit Court of Appeals concluded in Frlekin v Apple Inc., 2018 WL 3637665 (6th Cir. 2018), that this regulation is "at least ambiguous." The court concluded, among other things,that under its own reading of the regulation, employers could not be certain that the regulation was valid under the Administrative Procedure Act (APA). Although the compliance of any workplace policy containing a "meal" or "break" period containing an hourly restriction (such as no penality for first-time violations are administrative warning letters) will ultimately be decided by the U.S. federal Circuit Court of Appeals and/or the U.S. Supreme Court, Michigan employers are exempt from the FLSA and the hourly restriction in those federal regulations currently being used. Accordingly, unless the Michigan Attorney General were to bring an enforcement action in Michigan federal court, the FLSA case law cited above could be applied in Michigan at any time.
What Employees Can Expect and Employers are Required to Provide
Employees Are Entitled to Breaks for Lunch if the Workday Exceeds 5 Hours
Under the Michigan breaks and lunches law, employees are not entitled to a break until they work more than five hours. MCL 408.419(2) states that, "if an employee works more than 5 hours in a day, the employee must be allowed either a 30-minute paid or unpaid rest period or a 30-minute unpaid eating period." As such, generally, if you work more than five hours in a day, the employer must provide you with a meal or lunch break. If you are required to work during the time of your break, such as to stay on the phone with customers, the employer must pay you for this time. Employers cannot prohibit you from going on breaks or having your meal break, and cannot require you to work during your break or meal period. If you return to work late from lunch, it would not be an excuse for employer to fire you for being tardy or for disciplinary action. The employer cannot penalize you in any way for taking your required and intended breaks. Employers are also prohibited from sliding around the break period so that you miss it, such as calling you at the end of the 30 minutes to come back to work, or telling you that your break ended a few minutes earlier than allowed. Employers are also prohibited from requiring you to perform services before and after breaks, because stopping work to take a break is the same as being at work. Further, the employer cannot otherwise interrupt your break and require you to handle other matters. In short, employers cannot manufacture a loophole from which to avoid their statutory obligation to provide breaks for lunch.
FAQs: Michigan Breaks and Luncheon Laws
While the Michigan law is fairly straightforward, both employees and employers can have questions about employee breaks and lunches. Some common questions include:
Do I have to work during lunch?
Most of the time, employees must be relieved from duty for the purposes of eating a lunch or meal. If an employee eats on the job, he must actually be "relieved" of his work duties. This means that the employer must relinquish control over the employee whether by no longer using them for their labor or by the employee’s ability to leave the premises.
Do I have a right to ask for a break or a lunch?
Under Michigan law, you have a right to appear at work and to work as you agreed to in your contract. If a contract or policy says meals and breaks are provided, then that is the expectation.
Do I have a right to be paid for all hours worked?
Yes, every employee has a right to be paid for every hour worked. Many employers get around this by adjusting times when employees clock in and out or by requiring an employee to arrive at work before they clock in. Both of these issues are violations of the law.
Do I have a right to a specific meal?
Many employers have policies in place that state they will provide a meal for an employee after eight hours worked and that after 12 hours off, you will be allowed to go home. Again, these expectations become part of your contract.
Penalties for Non-Compliance
Employers that violate the breaks and lunches statute may be subject to civil liability pursuant to Mich. Comp. Laws § 408.473(3). This statute states that: "Any employer who violates this act shall be liable to the affected employee or employees for any unpaid wages due as a result of the violation, together with interest at 1% per month on the unpaid wages."
The employer is also responsible for paying the cost of bringing the lawsuit (if there is one), in addition to attorney’s fees. Further , wages that are not paid for wages that were earned while the employee was employed may not be subject to Michigan’s Right to Work Act’s prohibition on union security agreements.
And no wage rate or other term of employment prescribed by the statute can be reduced, directly or indirectly, by contract or otherwise, unless the contract is in writing, all parties have agreed to the change, and the change does not result in a reduction of the person’s wages below the minimum wage per hour.
However, the penalties do not apply to any violation of the section regulating meal periods in an industry for which there is a statutory exemption.