Give a worker a break

You deserve a break today.

Although it may sound like a classic slogan for a fast-food restaurant, I’m not talking about going out for burgers. I’m referring to employees who, over the course of an-often-crazy workday, need to take a breather. However, for many it can be difficult.

A recent study by the University of Waterloo found that heavy workload is the top reason many workers don’t take breaks, followed by their desire to keep their momentum going and the unflinching spectre of deadlines. This follows an earlier survey that found nearly four in 10 employees occasionally, rarely, or never take lunch breaks – with women twice as likely not to take a break as men.

This can be a problem all around. Few will question the benefits of taking breaks from your work, whether it to recharge your mental battery, gather your thoughts, or avoid burnout. Yet another university report, this one from Simon Fraser University, found as much.

And it’s not just the wellbeing and productivity of employees that should concern employers if their staff are working too much without taking breaks. There could be legal liability, too.

Employment standards

Every jurisdiction as employment standards, and every employment standards legislation addresses breaks and work hours. For example, the Canada Labour Code, which governs federally regulated employers, stipulates that “every employee is entitled to and shall be granted an unpaid break of at least 30 minutes during every period of five consecutive hours of work.” The Ontario Employment Standards Act, 2000, similar provides for “an eating period” of at least 30 minutes for every five consecutive hours.

Other jurisdictions have provisions along the same lines, so if some employees tend to eat at their desk while working and not taking a break, there could be a problem. In particular, if an unpaid lunch break is scheduled into the normal day and work is performed, then the employee might be working more hours than for which they’ve been paid, and could also possibly cross the daily threshold into overtime.

All Canadian jurisdictions have a daily and weekly cut-off for normal work hours, and anything beyond those totals must be paid with overtime rates – usually 1.5 times the normal hourly rate of the employee. So if an employee works through lunch and ends up working nine hours in a jurisdiction with a daily maximum of eight hours, then that employee is owed overtime pay for that extra hour.

The tricky part is that it doesn’t really matter whether the employee has permission to work extra time or not. The employer may not want them to, but they’d better clearly instruct employees not to do so, because if they do, the employee is entitled to overtime pay. Even where employers have policies where overtime must be authorized, it won’t always do the trick – they are obligated to pay employees for overtime actually worked.

Work for pay

Work is work, regardless of whether it’s performed during what is supposed to be a lunch break, or after hours. A fundamental element of the employment relationship that employees perform work for pay, even if they volunteer for it.

Last year, the Ontario Labour Relations Board ordered a small law office to pay an employee for helping around the owner’s house after the law office closed during the pandemic. Even though it was the employee’s suggestion, the law office had the worker performing administrative and clerical tasks along with housework. These were tasks from which the law office benefitted and the board characterized the employer’s belief that the employee could work for free as “wishful thinking. The law office was ordered to pay wages based on the hours the employee documented, as the employer did not keep any records of the work performed.

In the last little while, the landscape of the workplace has changed significantly, with many workers doing their jobs remotely. This, of course, leads to an increased potential of longer breaks among the distractions of home. A US study in 2021 found that workers thought they took about 42 minutes per day for breaks, but the reality is that they were taking more like 2.7 hours.

However, remote work can also encourage the opposite. The convenience of having one’s workspace nearby and no commute can push some people into working longer hours – more than one-third of teleworkers in a Canadian study from 2021 said as much – which can lead employers back into the tangled web of unpaid overtime risk.

It can be tempting for employees to take some extra time or cut short their lunch break to get something else done, but in the long run it can carry different risks to employees and employers. Employees deserve a break today, and employers deserve less worry about liability.