Real World Impact: A recent increase in complaints under the Illinois One Day Rest in Seven Act (ODRISA) highlights the necessity for Illinois employers to be familiar with the requirements of this law.
Introduction: The ODRISA has been in existence since the 1970s. Buried within the ODRISA is also a meal break law. In recent years, the Illinois Department of Labor (IDOL) has seemingly processed more and more cases under this law, and we have found that many employers are still either unaware of the law, or unaware of its full scope. The potential for fines and penalties could be high enough to put some companies out of business. Nothing about ODRISA is particularly tricky, and employers should theoretically be able to understand and comply with it – if they are aware of it. This article will provide further information on the law and best practices for compliance.
The Law
ODRISA has two main components, allowing one day of rest (24 hours) after six days of work, and permitting a meal break after a certain number of hours of work. Note the key words here are “permitting” and “allowing.”
Section 2 of ODRISA states:
(a) Every employer shall allow every employee except those specified in this Section at least twenty-four consecutive hours of rest in every consecutive seven-day period in addition to the regular period of rest allowed at the close of each working day. (Italics added)
The law includes a number of general exemptions, including most exempt employees under the Fair Labor Standards Act (FLSA), employees whose hours are governed by a collective bargaining agreement (CBA), certain part time employees, employees needed in emergencies to repair machinery or equipment, etc. Section 8 of ODRISA provides a procedure for employers to request a permit from the IDOL that authorizes them to have employees work 7 days in a row up to 8 times in a year, mainly for a business necessity.
Section 3 of ODRISA states:
Every employer shall permit its employees who are to work for 7 1/2 continuous hours, except those specified in this Section, at least 20 minutes for a meal period beginning no later than 5 hours after the start of the work period. An employee who works in excess of 7 1/2 continuous hours shall be entitled to an additional 20-minute meal period for every additional 4 1/2 continuous hours worked. For purposes of this Section, a meal period does not include reasonable time spent using the restroom facilities. (Italics added)
There are also some exemptions to the meal break law, including employees whose meal periods are established through a CBA, certain employees who monitor individuals with developmental disabilities or mental illness, and certain employees who are employed by a private company and are licensed under the Emergency Medical Services System Act. Also, hotel room attendants are entitled to a 30 (rather than 20) minute meal break, plus 2 15-minute rest breaks if they are working 7 or more hours. Importantly, FLSA exempt employees are not exempt from the meal break law.
Tracking and Payment for Meal Breaks
The Illinois Wage Payment and Collection Act requires employers to track the hours of all employees, not just nonexempt employees. (Section 5 of ODRISA also requires employers to keep records of the hours and days worked each day.) This means that it is imperative for employers to have in place some form of a time tracking system, such as a time clock, phone app, computer software, or even handwritten hours on a piece of paper if all else fails. That said, it is critical that employers require all employes to clock out and back in (or otherwise document in some form of a written or electronic record) for all meal breaks. That is simply the best and easiest way to prove that employees took the meal break, which also means that employers allowed the meal break. (Note that it is never appropriate for an employer to automatically deduct a set amount of time from an employee’s clocked hours for meal breaks.)
It is also important to mention the intersection between the Illinois meal break law and the federal FLSA. Federal regulations provide that a bona fide meal break is at least 30 minutes, which means that if an employee takes less than 30 minutes (free and clear from all work), the employee must be paid. Therefore, if an Illinois employer only allows an employee to take 20 minutes (or anything less than 30), then the meal break must be paid. If an employer does not want to pay for a meal break, it must create a policy requiring the employee to take a minimum of a 30-minute meal break. If an employee violates the policy and clocks back in after just 29 (or less) minutes, the employer must still pay for that time (no differently than if an employee works overtime without permission). If the employer is unhappy with the rule violation and having to pay for the meal break, the employer can simply discipline the employee.
What if an Employee Does Not Want a Meal Break or Wants to Work 7 Days in a Row?
Nothing in the language of the actual meal break law suggests an employer must require an employee to take the break. Instead, the law merely refers to employers having to permit the break. The IDOL added confusion to the analysis, however, with its regulation, Section 220.800, which states: “The meal period required in Section 3 of the Act…shall be required in each continuous 7 ½ hour period worked by an employee.” (Italics added) Thus, it became impossible to determine with such vague language whether the IDOL was saying that an employer must require the meal break to be taken. Currently, the IDOL has published a nonbinding “Frequently Asked Question” that states that if an employee works through a meal period, he must be paid, which implies that employees can voluntarily skip a meal break. With this FAQ, it is likely safe to interpret this to mean that it is okay for an employee to skip the meal break. The regulations to the day of rest portion of the law more clearly state that an employee may voluntarily work the seventh day.
Although employers do not have to force employees to take a meal break and can refuse to allow an employee to work a seventh day in a row, the better practice for most employers is to require the meal breaks be taken, and not schedule or allow employees to work the seventh day. In that case, it would be more difficult for employees to claim they were not allowed or permitted the breaks. Realistically, however, employers may be faced with situations such as employees who want to work through their meal period to make up time for starting late or leaving early from work, either on a one-off or regular basis, or tipped employees who want to maximize their pay, or employees trying to earn extra money by working seven days in a row. The presumption that the IDOL will make, however, is that if an employee did not take a meal break or worked seven days in a row, it was not voluntary, and the employer did not allow or permit it.
So, what is an employer to do? The only way to truly prove that an employee voluntarily worked through their meal break (or started it after the fifth hour) or voluntarily worked a seventh day in a row, is to have documentation proving it was voluntary, each and every time it happens. Documentation can be as simple as the employee emailing the employer stating that they are choosing to work through their meal break (or not take it in the first 5 hours of the day) or that they want to work the seventh day in a row. Forms can be created for employees to sign. Electronic documentation can be used. Truly, anything in writing that shows that it was entirely the employee’s choice and not forced or coerced, would likely suffice.
If an employer sees that an employee has failed to take a meal break or clock out for it, the employer should have the employee verify in writing that it was voluntary, and if necessary, begin a disciplinary process (verbal warnings that get documented, written warnings, etc.) to verify attempts to require the meal break be taken. The act of the employer proving it reminded the employee to take their meal breaks (and even disciplined for not taking the break) can also show that the employer was allowing or permitting the meal break.
Thus, a best practice for employers is to require meal breaks be taken and not allow employees to work seven days in a row. Whether or not the employer has these specific policies, however, if it does happen that a meal break was skipped or not started on time, or an employee worked 7 or more days in a row, the employer must have the employee document, in writing, that they did so voluntarily. Another option for employers who know that employees may work 7 days in a row from time to time is to request a permit from the IDOL in advance.
Penalties for Noncompliance
Depending on the size of the company and the number of violations, the penalties for noncompliance with ODRISA can be financially devastating to a company. It only takes one complaint to open up the time records of all employees of a company over a long period of time. Depending on the size of the company, penalties can be up to $500 per violation paid to the employees, and the same amount payable to the DOL. The penalties are assessed for each instance in which an employee did not get a meal break and each time an employee worked 7 days in a row and will only be reduced or eliminated with documentary proof of the voluntary nature (or if an exemption applies).