The DailyDot recently reported regarding a Tik Tok video about the lunch hour. It illustrated for me the way that our world is changing and reminded that people can have very different perspectives on things. The worker who made the video "was told work was 9 to 5," but was "unpleasantly surprised to learn that many modern jobs . . . (are) 8 to 5 . . . (with) an unpaid hour-long lunch break." she was non-plussed by the revelation, and thus the video claiming the lunch hour is "a scam" and "sneaky." One a commenter asserted in response that "we have been robbed." Of course, anyone might choose where to work, and so "robbed" is perhaps a bit strong? Do workers accept jobs and then learn what the details might be?
The Dot provides an overview of the source of lunch break habits, noting that there is "no federal regulation() requiring a lunch break. It provides a link to an Occupational Safety and Health Administration (OSHA) site that lists various state laws regarding daily breaks and lunch. Thus, anyone with complaints about such a lunch break might wish to consider whether in any instance it is driven by the employer or by some state law requirement. Even if the law mandates a break, there is not likely any prohibition that prevents an employer from paying an employee for that time. But, are there implications that could come with that?
It is perhaps opposite to the issue raised by NBC in 2012 when it questioned What Happened to the Lunch Break? That article concludes that some surveys suggested the majority of workers "skip lunch or eat lunch at their desks." Notably the trends away from lunch existed way before the pandemic, the "Great Resignation," and the challenges of returning to the office.
The challenges of the workplace are not new to these pages. The changes in work environment were discussed in Evolving Work Challenges (January 2022). The challenges of at-home work started to come to the fore before the pandemic, see Personal Comfort? Testing Compensability (April 2019) and It's not That the Wind is Blowin' (June 2021). And, the workplace is inextricably intertwined with workers' compensation (Keep it down up there Statler and Waldorf).
There will therefore be issues interrelated with work. Is it possible that an employer might be held responsible when working conditions play a role in some tragedy? The employer in LFI Ft. Pierce v. Holmes, 1D18-5243 (Fla. 1st DCA 2022) was held responsible for an employee's dehydration, which the trial judge concluded caused an automobile accident after work. The trial judge's decision in that regard was reversed by the appellate court however. It is practical to say that there is always some degree of chance that working conditions might lead to allegations against an employer.
In that regard, an employer would be well advised to know about the list of state regulations listed by OSHA. But, what about issues more directly related to the lunch break?
An injury might occur on any break. The analysis of that should generally be directed through the personal comfort doctrine, a part of the "course and scope" test for workers' compensation compensability. However, there is always the potential for that to become misapprehended and interpreted into the "arising out of" that is discussed in Valcourt-Williams v. Sedgwick, featured in the Wind is Blowin post above.
Florida law includes interesting interpretations. City of Miami v. Dwight, 637 So.2d 981 (Fla. 1st DCA 1994) explained that an accident away from work, is generally not compensable. However, if an injury occurs on the employer's premises while going to or from the lunch break, then it may in fact be compensable. The Court there noted:
"other variables may involve the question whether the interval (break) is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee's activity during this period constituted a substantial personal deviation."
That element of being paid was notably of importance to the Court's recent decision in of compensability when travelling to or from work (and the "going and coming rule). DSK Grp., Inc. v. Hernandez, ___ So.3rd ____; No. 1D19-2632, (Fla. 1st DCA 2022). The court explained:
"Put simply, if an employee is being compensated or reimbursed for his time traveling, or if he is traveling between two compensated activities, then he would not be traveling to or from work—even if the travel is to or from his home."
That might be seen as having consistencies with the Dwight "variables" noted above, though that precedent is not cited by the Court.
In a very interesting opinion, the Louisiana Second Circuit Court of Appeal concluded that a disease case was compensable. See West Nile Disease in Comp (August 2020). This decision was much studied after the onset of our recent pandemic and the overall vigorous interest in occupational disease cases, particularly as regards compensability of some exposure that might occur in a variety of places. See also Occupational Disease and the 1918 Flu (July 2020). Of note, the allegation in the Louisiana case was clearly related to a mosquito bite in the company breakroom. This perhaps at least suggests that the employee was on a break at the time, and the disease was nonetheless deemed compensable.
Potentially, these cases thus suggest a potential distinction between lunch and other breaks, and in fact the Court discussed that in Dwight. In doing so, the Court referred to Professor Larson and explained that breaks generally may be different from lunch breaks, depending upon variables such as durations, conditions, the employment contract, whether it is paid or not, and more. Therefore, an employer electing to pay for the lunch hour, in the scope suggested in Dwight and Hernandez may or may not impact the compensability of anything that occurs during that break.
In all, the concept of work breaks is not new or novel. The challenges with whether an employer may enforce a lunch break is intriguing, and perhaps illustrates how we as individuals are potentially different or even unique in our preferences for the workday. I have never been one for lunch breaks and usually eat something at my desk while I work. However, I had a coworker once that was punctilious about his hour from 12:00 to 1:00. He would literally stop mid-sentence and walk away when the clock struck 12:00, much like Fred Flintstone departing work when the whistle blew.
Is it generational? Do workers now want a day that does not include the lunch break (shorter day)? Or, perhaps they want a shorter work week as is being explored in an experiment described recently by the British Broadcasting Corporation? Or, is it personal? do various people have valid and yet personal preferences for or against an enforced lunch period of some duration? The issues are interesting, and just another challenge for workers and employers to face as the define their respective relationships (with or without the workers' compensation implications in mind).
