Cross-Border Catch-Up: Compliance With Puerto Rico Meal Break Requirements

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Skye Hao: Welcome to the Cross-Border Catch-Up, the podcast for global employers who want to stay in the know about cutting-edge employment issues worldwide. I am Skye Hao, and I am here with my colleague Carlos Colón-Machargo. We are cross-border attorneys here at Ogletree Deakins. Today we are going to discuss the particularities of the meal period granted by employees in Puerto Rico.
Carlos, I understand that Puerto Rico has very specific rules regarding the meal period that must be granted to employees. What are those rules?

Carlos Colón-Machargo: Hi, Skye. I am happy to be here with you today. So yes, Puerto Rico has specific rules that apply to non-exempt employees as they’re defined under the Fair Labor Standards Act. In essence, employees should not work more than five consecutive hours without a meal break. There is an exception. If employees work less than six hours, they’re scheduled to work a shift of six hours or less, then the meal period does not to be granted.

Skye Hao: When does a break need to take place?

Carlos Colón-Machargo: So yeah, it’s important to know that the break is an hour long, and it is unpaid. Employees and employers may enter into an agreement to waive or reduce the meal period to half an hour. Yes, there are very specific rules about when the meal period needs to take place. It has to be after the second hour of work has ended, but before the sixth hour of work has begun. So, for example, for employees who work an 8:00 to 5:00 shift, the meal period must happen between after 10:00 AM, so 10:00 AM and one second, but before 2:00. So, 1:59 PM or before, it will be within that range where the meal period must take place.

Skye Hao: That’s really specific, like 10:01 AM. So, what if the employee works in a longer day? Does she or he qualify for a second meal break?

Carlos Colón-Machargo: Yes. So, if non-exempt employees work more than 10 hours in any given day, they should receive a second meal period unless they work less than 12 hours and they took their first meal break. It used to be that employees could waive that second meal period, but now under the amendment in 2017, employers now have the option of not giving that meal period if those two conditions are met: if the employee works less than 12 hours and if they took their first meal period. Also, the first meal period, the second meal period could be reduced to no less than half an hour if it’s given.

Skye Hao: That’s really interesting. So, what about the penalties if employers are not giving those meal period to employees?

Carlos Colón-Machargo: Yes. So, since the meal period needs to happen within that range that I described, after the second hour of work has ended and before the sixth hour of work has begun, if the whole meal period takes place before the second hour has ended or after the sixth hour has begun, the full meal period must be given either an hour, or if the employee has waited, then a half an hour must be paid. Also, if the employee enjoys the meal period part of it, like before the second hour has ended and then part of it after the second hour ends, the only the penalty will be over the amount before the second hour has ended. So, it’s not the whole period. The part that took place within the range that is required, it will not be subject to the penalty.
Also, there will be a penalty if the employer interrupts the meal period that is granted because it requires the employee to do some work during that time. There will be a penalty. And there could be a penalty if the employee interrupts the whole period. If the interruptions are substantial, the penalty could be asserted over the full period. Please note that there’s no penalty if the period starts before the six-hour commences, there will be no penalty because that’s what is required for the period to start. So, even if part of that period takes place after the sixth hour has commenced, there will be no penalty because it started before the sixth hour.
The penalty varies depending on the employment date. There was a reform in 2017. So, employees that were hired before January 26th, 2017 will be entitled to double time for any time that they worked, any violation of the meal period. Whereas employees who started as of January 26th, 2017, it will be time and a half for any penalty for any work performed during the meal period. Interestingly, the meal period will be paid in excess of any overtime or in addition to any overtime. For example, daily overtime and weekly overtime, if it’s triggered by the same event, you only pay that once. But if you work during your meal period and as a consequence, you either trigger weekly overtime or daily overtime most likely, you will be paid both, the daily overtime and the meal period penalty.

Skye Hao: So, the meal break are supposed to be unpaid, but if employers ask them to work during the meal break or interrupt the meal break, then those become too paid. Is that accurate? I may be wrong.

Carlos Colón-Machargo: Yes. No, it becomes . . . yeah, you have to pay for those, and not only at the regular rate. You pay either time and a half or double time for the employee not enjoying their meal period. You’re correct.

Skye Hao: That’s really interesting. Are there any final thoughts?

Carlos Colón-Machargo: Yeah, it gets complicated when you have a workforce, you have several shifts, or you don’t observe regular hours to coordinate and make sure that the meal periods are observed. It is the kind of potential liability that could get costly because it could happen continuously over time, and they accrue and they might become costly. So, it’s important for employers to be aware of them and to track hours in a way that they will avoid any penalties and comply with the statutory requirements.

Skye Hao: Thank you. Thank you, Carlos, for providing us this really interesting and insightful summary for a meal break in Puerto Rico. And thank you for joining us for today’s Cross-Border Catch-Up podcast to stay in the know about the cutting-edge employment issue worldwide.

Carlos Colón-Machargo: Thank you. Have a great day.

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