Meal breaks are under attack in Tennessee. Last week, Sen. Brian Kelsey introduced a measure that would allow hourly employees to surrender their right to a 30-minute unpaid meal break — something now required under state law after an employee works six straight hours.
Employee activists and labor attorneys consider the proposed law, which is sure to pass the Republican supermajority in both chambers, a disappointing setback for workers’ rights and one that will likely stoke additional friction between workforces and employers.
Two years ago, meal-break laws changed in Tennessee for people who work in the restaurant industry in the same way. For servers and others whose hourly wage includes tips, 30-minute unpaid meal breaks can now be waived. Kelsey’s bill attempts to make this the norm for all workers on the clock.
According to the state’s latest figures, some 220,000 Tennesseans work in the food service industry, a number that has spiked 8 percent over the past year. In Middle Tennessee, approximately 712,000 workers work in an hourly field that provides some kind of service. Which is to say: The number of people affected by the meal-break law change in 2012 and the one recently proposed is huge.
In the food service industry — where I worked the last two months — there persists a culture in which breaks of any kind are shunned and the mere discussion of them can provoke awkward conversations between management and employees. At the restaurant where I worked, managers generally say that a break is permitted, as long as it gets their blessing.
It’s a refrain echoed at restaurants all over Nashville, although it’s steeped in a misunderstanding of the law. According to state law, it’s not up to the manager to greenlight a break after six hours. Instead, the only way a restaurant is not breaking the law by avoiding breaks after six hours is if the employee signs a waiver opting out of the statutory right to chill out for a half-hour without pay.
In fast-paced, adrenaline-fueled work environments, those 30 minutes can really help maintain sanity and often provide a much-needed physical respite. Needless to say, people in the restaurant industry generally say that the nature of the work doesn’t accommodate breaks. Furthermore, many servers told me they didn’t want breaks because it meant not making money for 30 minutes.
But to those who do need a rest period, there is a sense that bringing it up is a sign of weakness that might make co-workers feel like they’re picking up the breaking employee’s slack.
“Sometimes it becomes the status quo that nobody is taking a break,” says East Nashville restaurant owner Matt Charette. “But most servers would rather be on the floor during a rush than being on break. It almost feels like you’re being punished if you’re taking a break during a rush period that occurs after a six-hour shift.”
At Charette’s restaurants, including Batter'd & Fried, Beyond the Edge, Drifters and Watanabe, employees take breaks when they need to, though not taking any is not uncommon.
“There’s always someone who wouldn’t mind picking up a few tables,” Charette says. After all, he explains, “it’s not combat. It’s the restaurant business.”
To attorney David Garrison, whose practice focuses on wage and hour lawsuits, viewing breaks as a rare luxury sets a troubling precedent for hourly workers. That mentality, he says, is furthered by Sen. Kelsey’s recent bill.
“Given that Tennessee has practically no state statute that protects workers’ pay, it’s disappointing that the legislature would seek to attack a law that simply provides workers with a decent break during their work day,” Garrison says.
One of the most common violations of the break law, Garrison says, is when employers dock the 30-minute unpaid break from employees’ checks when, in fact, they are not given any rest period. Doing this is a Class B misdemeanor and can trigger fines. But in Tennessee, an employee cannot sue over meal-break violations. It’s up to already inundated state officials to enforce it after complaints come in.
This, Garrison says, is part of a trend in Tennessee of passing labor laws that can only be enforced by the government, not private employees. Investigating the offenses is often expensive and time-consuming and rarely a top priority of understaffed state agencies.
“At a time when the legislature should be focusing on economic development, they’re attacking a very basic, decent right,” Garrison says.
Yet to attorney Chris Anderson, who represents employers in workplace lawsuits, Kelsey’s law might actually benefit workers and bosses alike.
“In some industries, both benefit from waiving a meal, if, for example, having to take a break prevents someone from making a sale,” Anderson says. “Employers especially have an interest to waive those meal breaks because it helps provide what customers really want: continued and uninterrupted service.”
