Second lunch break. Lunch break without violations

Is it possible to oblige an employee to be on the organization’s premises during lunch? Is it necessary to include smoking breaks during working hours? What documents should I prepare to regulate the break time? You will find answers to these questions in the article prepared by our colleagues from the Personnel Business magazine.

Lunch is one of the controversial moments of the working day. It would seem that everything is clear: the employer must provide a lunch break within the established duration, and the employee must use it for its intended purpose. However, even such a simple question poses difficulties in practice. They are due to the fact that many workers use numerous tricks to increase the time allotted for eating. Some people stay late for lunch, others leave early, while others, on the contrary, continue to work during the break. How to record, account for and control the use of lunch time by employees? Do I need to pay extra for an employee who works during lunch? When can I set floating lunch times? Should smoking breaks be included in working hours?

What can an employee do during lunch?

A lunch break is an employee’s personal time during which he rests and eats. During this period, the employee is free from performing labor duties and can use it at his own discretion (Article 106 of the Labor Code of the Russian Federation). The list of activities depends on the employee’s imagination. He can do personal business: go to the canteen, to the doctor, to the store, walk in the park, meet friends, read, etc. At the same time, he has the right not only to be absent from the workplace, but also to be outside the organization itself.

Exceptions are cases when an employee is forced to have lunch at work. This is permitted where production conditions make it impossible to provide a food break.

In this case, the employer must provide the employee with the opportunity to eat during working hours. The list of such works is established by the internal labor regulations (part three of article 108 of the Labor Code of the Russian Federation).

If during a lunch break an employee is on the employer’s premises, he must obey the requirements of local regulations of the organization and comply with labor protection rules (part two of article 21 of the Labor Code of the Russian Federation). So, if an employee works on an assembly line and has lunch at the workplace, he does not have the right to jog around the equipment, because this is prohibited by safety regulations.

Advice
It is not necessary to specify the lunch break period in the employment contract. It is enough to make a reference to the text of the internal labor regulations

During lunch, an employee has the right to work for another organization. Moreover, the main employer cannot prevent this, except in cases where combination with other activities is expressly prohibited by an employment contract or law. In many companies, the employee is required to coordinate such activities with management to avoid conflicts of interest and the risk of disclosing legally protected secrets.

How to regulate break time

The lunch break is established by the internal labor regulations, which all employees must be familiar with upon signature (part two of Article 108 of the Labor Code of the Russian Federation). The local act must clearly establish the start and end times of lunch.

At the same time, if the employee’s work schedule and breaks differ from those established in the organization, this condition must be stated in his employment contract (sample below). As a rule, such liberties are granted to sales representatives and other employees with a traveling nature of work, whose duties include frequent meetings with clients and partners.

Advice
A lunch break of at least 30 minutes must be provided to the employee regardless of his working hours (part one of Article 108 of the Labor Code of the Russian Federation)

This is due to the fact that neither the employee nor the employer is able to determine in advance for a long period of time when the next negotiations will take place, how long they will last and how long it will take to travel to the meeting place and back.

Floating lunch time

Some organizations have flexible lunch times. This assumes that each employee determines the start time of the break himself or coordinates it with his immediate supervisor. To introduce such a regime at an enterprise, the employer must fulfill the following conditions:

Establish a lunch break lasting no more than two hours and no less than 30 minutes (part one of Article 108 of the Labor Code of the Russian Federation);
- provide a break for rest and food during the working day, and not at the end (part one of Article 108 of the Labor Code of the Russian Federation);
- fix the lunch time in the local act of the organization, as well as in the employment contract with the employee (part two of article 108 of the Labor Code of the Russian Federation).

To introduce floating lunch time in an organization, it is necessary to issue an order to amend the internal labor regulations. The text of the changes must be previously agreed upon with the trade union, if there is one.

Floating lunch time can be set for an individual employee on an individual basis. To do this, he must write a statement requesting this. If the employer agrees, he must enter into an additional agreement with the employee. In its text, you can indicate the following wording: “During the working day, the employee is given a break for rest and food lasting 1 hour in the period from 12.00 to 15.00. The specific time for using the break is determined in agreement with the head of the department.”

If disputes arise regarding the use of working time, a work schedule can be developed. It is important that the work schedule and break for rest and food, established in the internal labor regulations and schedule, correspond to the working time sheet. Otherwise, the court may conclude that the employee’s rights have been violated.

Is it possible not to include smoking breaks during working hours?

The employer is not obliged to include in working hours and pay for the periods that the employee spends smoking, drinking tea, talking on the phone about non-work topics, visiting entertainment sites, etc.

At the same time, breaks are established by law, which are included in working hours and are subject to payment. These include:
- break for heating;
- break for feeding the child (Article 258 of the Labor Code of the Russian Federation);
- a break to relieve fatigue when working at a computer

For example, if an employee works in winter outdoors or in closed, unheated rooms, he can use the heating break at his own discretion. If he wants to smoke during this time, he will be paid for it.

The same applies to computer users, who can do special exercises to relieve fatigue when leaving the workplace.

At the request of a woman who has a child (children) under one and a half years old, the employer is obliged to add breaks for feeding the child to lunch (part three of Article 258 of the Labor Code of the Russian Federation).

How to control how much time employees spend on lunch

To monitor compliance with the established labor regime, each employer maintains a time sheet (part four of Article 91 of the Labor Code of the Russian Federation). It reflects the number of hours worked by employees, information about attendance and absence from work, etc. Maintaining the timesheet can be entrusted to department heads or HR specialists.

In addition, you can record the time that employees spend on lunch using an electronic entry-exit system (electronic keys), video surveillance or general “top-level” control over computer users (using special software).

If, based on the results of the control, it turns out that the employee is using working time for other purposes, the employer has the right not to pay for it.

Attention
Employees must be notified of upcoming changes in working hours and rest time at least two months in advance (part two of Article 74 of the Labor Code of the Russian Federation)

Example The internal labor regulations of an organization establish a working day from 9.00 to 18.00, a lunch break is one hour from 12.00 to 13.00. Employees are also given two breaks of 10 minutes each from 10.00 to 10.10 and from 16.00 to 16.10. Peter V. is a heavy smoker and smokes one cigarette every hour, spending 7 minutes on it. During the day he takes nine breaks, six of which are during working hours. The total time for smoking breaks, which the employer has the right not to pay for such an employee, is: 7 minutes. × 6 times = 42 min.

Should an employer pay extra for an employee who works during lunch?

In Russian companies, it often happens that employees do not fully use their lunch break, preferring to finish the work they started in the remaining time.

The answer to the question of whether an employee needs to be paid for such time depends on whose initiative he works during lunch. If it’s your own way, then you don’t need to pay for working during your lunch break. If the employee was attracted to work by the employer and this is documented, then the overtime must be paid as overtime (Articles 99, 152 of the Labor Code of the Russian Federation).

Attention
If an employee is constantly late at lunch, he can be brought to disciplinary action for violating internal labor regulations (Articles 192, 193 of the Labor Code of the Russian Federation)

Involvement in such work can only be done with the written consent of the employee or in cases where it is necessary to prevent industrial accidents, catastrophes, eliminate the consequences of a natural disaster, etc. (Part three of Article 99 of the Labor Code of the Russian Federation). Pregnant women and minor employees must not be involved in overtime work during lunch under any circumstances (part five of Article 99 of the Labor Code of the Russian Federation).

Five DON'Ts about lunch break

You CANNOT agree with an employee to exclude a lunch break from the working day or to move it to the beginning or end of the day.
You MUST NOT break your break into periods of less than half an hour. 30 minutes is the minimum time established by the legislator for rest and food.
Employees must NOT be forced to be on the employer's premises during their lunch break. At the specified time, the employee is free and can use it at his own discretion (Article 106 of the Labor Code of the Russian Federation).
You CANNOT take a break for more than two hours at a time. In this case, it will be necessary to talk about dividing the working day into parts (Article 105 of the Labor Code of the Russian Federation).
It is NOT possible to include break time for rest and food during the period of an employee’s unlawful absence from the workplace in cases where absenteeism is recorded.

Remember the main thing
Note the experts who took part in the preparation of the material:

Yulia SVINAREVA,

Head of the Legal Department of DELAN Group LLC (Balashikha):

A lunch break is a time when an employee is free from work duties and which he can use at his own discretion. An employer may oblige an employee to be at the workplace and in the organization’s building only if this is necessary under production conditions.

Alina GORELIK,
legal consultant of LLC "MORGAN AND STOUT" (Moscow):

An organization can introduce variable lunch hours, provided that its provision and duration comply with labor legislation. Such a lunch can be established for an individual employee upon his application and recorded in the employment contract with him.

Tatiana BASTRYKINA,
Head of the HR Department of Chelyabinsk Auto Service Equipment Plant LLC (Chelyabinsk):

Smoking and tea breaks are not included in working hours and are not subject to payment. You can record time spent inappropriately using video surveillance and an electronic access system.

The article was prepared based on materials from our colleagues from the magazine "Personnel Business"

The rules for providing a break for rest and food (usually called a lunch break) are defined in Art. 108 Labor Code of the Russian Federation. Thus, as a general rule, an employee must be given a lunch break during the working day (shift). The duration of the lunch break (break for rest and food) is no more than 2 hours and no less than 30 minutes. That is, the specific duration of the break and the time it is provided is determined by the employer and indicated in the Internal Labor Regulations (hereinafter referred to as PVTR) or in the agreement between the employer and the employee. Let us remind you that the employee must be familiarized with the PVTR before signing an employment contract (Article 68 of the Labor Code of the Russian Federation).

The rule on providing employees with lunch time is mandatory for employers, regardless of the working hours established in the organization and the length of the working day (shift) (Letter of the Ministry of Labor dated November 17, 2017 No. 14-2/B-1012).

By the way, if an employee works a night shift, he is given a lunch break according to the same rules.

Lunch times for part-time employees

An employee may not be given a lunch break if the duration of his daily work (shift) does not exceed 4 hours (Article 108 of the Labor Code of the Russian Federation). But the absence of a lunch break must be recorded in the PVTR or in the employment contract with the employee.

Can there be no lunch break under the Labor Code?

This is possible in jobs where it is impossible to interrupt the production process. Then the employer must provide the employee with the opportunity to rest and eat during working hours at the workplace. That is, a place for eating must be organized. The list of such “in-process” work is established in the same PVTR.

Is lunch break included in working hours?

Is lunch considered working time? No, in general the lunch break is not included in working hours. Therefore, the answer to the question of whether the lunch break is paid is also negative.

By the way, the fact that the lunch break according to the Labor Code is not included in working hours has another impact. Suppose an employee was absent from the workplace for more than 4 hours in a row, but this time included a lunch break. That is, minus the time of absence during the lunch break, the working time accounted for less than 4 hours of absence. In such a situation, it is impossible to fire an employee for absenteeism (Appeal ruling of the Sverdlovsk Regional Court dated March 13, 2018 N 33-4752/2018).

Lunch time for driver

Drivers, like other employees, must be given a lunch break of at least 30 minutes and no more than 2 hours. As a rule, such a break is organized in the middle of the shift. If the duration of a driver’s daily work exceeds 8 hours, then two breaks for rest and food can be set while maintaining the same total duration (no less than 30 minutes and no more than 2 hours) (clause 24 of the Regulations, approved by Order of the Ministry of Transport dated 20.08. 2004 No. 15).

Floating lunch break

Sometimes work conditions are such that it is difficult to set a specific time for a lunch break. In this case, by agreement between the employee and the employer, you can:

• divide the break into parts. But at the same time, breaking the break into parts lasting less than 30 minutes is unacceptable;
• establish a variable lunch break time (for example, establish that a 1-hour lunch break is provided to an employee from 12.00 to 15.00).

Specific rules for providing a lunch break must be prescribed in the PVTR.

Changing the duration of the lunch break

Suppose an employer decides to reduce the lunch break from 1 hour to 45 minutes. How to introduce such an innovation? Since the terms of the employment contract change, it is necessary to conclude a written additional agreement with each employee to the employment contract on changing the working hours (

Many personnel during employment are interested in the question: what rules govern the lunch break at the enterprise? This is a very important point that helps ensure that employees have free time to eat. Its absence makes one question the employer’s integrity. After all, eating is a natural need of the body. And every employee must satisfy it. But, of course, not to the detriment of work. Often the working day lasts long. Or the person stays to work overtime. He somehow needs to eat. Standards for lunch breaks in Russia are established by the Labor Code. What does it say? What key points should employees pay attention to?

Direct responsibility

The first important point is that in the Labor Code of the Russian Federation, breaks for meals are indicated as mandatory. That is, every employer is obliged to provide its employees with a certain period of time during the working day or work shift for a lunch break. Especially if we are not talking about part-time work, but about a full-time shift. Lack of time to eat is a direct violation of the rules established by law. You cannot starve your subordinates. They have the right to complain against their employer. It is only possible to omit a meal break when the shift is approximately 4 hours long. That is, part-time. But even in this case, subordinates can legally demand a lunch break.

Not at the expense of work

The next point is taking into account the time for rest and eating. Article 108 of the Labor Code indicates that the employer is not only obliged to provide this period of time to his subordinates. This period is not counted as a working period. That is, the employer does not have to pay for lunch breaks. And no one has the right to demand this from him. Even if the person, on his own initiative, did not interrupt his job duties to eat.

Minimum

There are certain standards regarding the length of rest and lunch breaks. They are also spelled out in the Labor Code. But we are talking exclusively about the maximum and minimum. Exact numbers must be indicated in the employment contract of each employer. It turns out that the length of time allotted for meals is the time frame that the director has the right to set independently. But taking into account the established norms for the duration of rest.

What is the minimum time allocated for a meal? At least 30 minutes is the minimum required by law in Russia in order to eat or simply relax. Setting a lunch break below the specified level is a violation of the legislation of the Russian Federation. which indicates a period less than the established norm, as well as its complete absence, - this includes labor personnel.

Maximum

What else should you pay attention to? What important points does the Labor Code contain? A lunch break is something that every employer must provide to its employees. The minimum time allowed for a meal is 30 minutes. What about the longest prescribed duration? The maximum lunch break is fixed by law. Up to two hours are allotted for rest and eating. In practice, such a long break is rarely observed. The main thing is that this time should not be paid by the employer under any circumstances.

Without stopping from work

In some cases, the employer cannot provide employees with legal rest, which involves a break from work. In this situation, the Labor Code of the Russian Federation also provides for certain rules. It has already become clear that you cannot leave your subordinates without eating. This means that the lunch break must be provided at the expense of the work shift. The director is obliged to provide the opportunity to eat while performing his duties. For what positions is it provided? an employment contract concluded between an employer and a subordinate. It is in it that the norms regarding breaks are indicated, and also the places where you can eat and rest are prescribed.

No strict limits

A lunch break is a value that, as already mentioned, has only maximums and minimums that are legally established. The article under study does not provide any other specifics regarding the provision of time for rest or meals. As already mentioned, each employer independently sets the duration of the lunch break. These norms are prescribed in the employment contract. As a rule, in enterprises all employees are given a break at a specific time (for example, at 12:00). It can be used both for relaxation and for lunch.

In reality, 30 minutes is too short for a meal. Often employees do not have time to eat in peace. And 120 minutes is an extremely long time. Therefore, there is an unspoken norm regarding the issue being studied. Most employers set the rest break at 1 hour.

Where to relax and have lunch?

Of course, you should not in any way eat food directly at the workplace. Therefore, it is necessary to clearly designate at each enterprise an area that is intended for rest or lunch. This is quite normal. Most often, such a place is a canteen or cafe located at the corporation.

It should be noted that the lunch break is carried out exclusively in accordance with the employment contract. This means that the employer must not only allocate, but also indicate in the concluded agreement the places reserved for meals or breaks for unpaid legal rest. If there is no such point, employees can eat directly at the workplace or even leave the walls of a particular company to rest or break for lunch. Therefore, this feature should not be neglected.

Women with babies

Women who immediately went to work immediately after giving birth require special attention. Article 108 of the Labor Code of the Russian Federation indicates that such employees should be given not only a break for eating. Up to a certain point, these personnel have every right to count on additional rest. According to the established rules, the lunch break for a woman who has children under the age of 1.5 years must last in accordance with the internal rules of the corporation. But in addition, it can be calculated for periods for feeding the baby.

They also have their limitations. The maximum is set by the employer (usually by agreement of the parties). And the minimum is 30 minutes. That is, a woman with a small child can pause to feed the baby for at least an additional half hour, not at the expense of her own meal or rest.

How often should baby time be provided? At least once every 3 hours. In fact, it is recommended to coordinate this point with the employer - all children are different. Some people want to eat after 2 hours, others can tolerate it for 4-5. Therefore, these features are discussed in advance by the parties. The lunch break should not be changed due to the need to feed a child under 1.5 years of age.

Wherever I want, I’ll go there

The time allotted for meals, as already mentioned, is not paid. It is not included in the working day. Accordingly, the Labor Code provides for some features that give freedom of action to personnel during meals. The fact is that breaks for rest and food are personal minutes (or hours) of the employee. He has the right to use them at his own discretion. For example, go home for lunch, go shopping, meet friends. The main thing is to comply with the duration restrictions. An employer cannot prohibit an employee from doing this. If a subordinate wants, he can go to a store or cafe for food during his lunch break. After all, restrictions by superiors in actions during periods that are not paid is a violation of human rights.

Vacation outside the company

The lunch break is not necessarily the time at which meals are taken. The fact is that since these periods are not paid, the Labor Code of the Russian Federation provides for the free use of these periods of time by employees. They can not only eat, but also rest. Moreover, no one has the right to force a subordinate to remain within the company. Breaks for rest or lunch are the personal time of every citizen. And he has the right to dispose of it as he wishes.

The only thing the subordinate must take into account is the following point: if no meal was taken during the established lunch break, there will be no additional break for eating. The employer, at his discretion, can make concessions to the employee, but this is an extremely rare occurrence. You shouldn't rely on it.

Changing breaks

Another important point is that the lunch break is a clearly defined period of time. It must be installed and approved by the employer. It is important. Some people are interested in whether it is possible to independently move lunch time to a particular hour. The answer is simple - no. You can try to negotiate with the employer, but nothing more. On an ongoing basis, no one will reschedule the time allocated for rest and meals for a specific employee. You cannot reschedule breaks on your own initiative. Therefore, if an employer offers lunch from 12:00 to 13:00, for example, then you need to eat during this period of time. After all, no more breaks will be provided.

Work in transport

Often, employees have to work in transport or constantly be absent from their main workplace in order to fully perform their job duties. That is, people have specific work schedules. How to deal with lunch breaks in this situation? The employer must issue a special decree that will spell out all the nuances of the time provided to employees working in transport or constantly traveling for lunch and rest. Such documentation is called a provision on providing breaks to personnel with special working conditions.

Often, employees set aside time for lunch on their own without notifying the employer. That is, while, for example, they get to the meeting place. According to the established rules, this cannot be done. But unspoken norms provide for such a step. But this does not exempt the employer from providing an official meal break. He still must set aside a certain period for lunch. Otherwise, his subordinates can legally complain about him.

Summarizing

What conclusions can be drawn from all of the above? A lunch break is a legal time that must be allocated by the employer for rest and meals to all employees. Its minimum duration is 30 minutes, maximum - 120. In fact, it is practiced to establish an hour-long lunch break.

The studied period of time is allocated by the employer in accordance with the employment contract and the internal regulations of the enterprise. Only the boss can carry it. Employees do not have any right to arbitrarily change their rest and lunch times. It is illegal. Women with small children may require additional breaks to breastfeed. Not the most common practice, but it does happen. The employer cannot refuse this. The lunch break should not be reduced. It is provided to female employees on the same terms as to all other subordinates.

Each subordinate has the right to freely manage the time allocated for rest or lunch. You should pay attention to the fact that you can leave the walls of the company. No one can restrict an employee in this regard. After all, the employer does not pay for periods of rest and meals. This means that he cannot claim personal time for his subordinates to rest.

The right of employees to rest is one of the main ones for Russian workers, while a lunch break, according to the Labor Code, in many cases is a mandatory part of the work schedule. The duration and obligation of a lunch break according to the Labor Code of the Russian Federation may vary depending on the circumstances and nature of work activity, differing for work in an 8-hour or 12-hour working day. Therefore, both employers and workers need to know how long the lunch break lasts and what standards govern it.

Lunch break according to the Labor Code - basic principles

The lunch break is not necessarily provided specifically for food and during the actual lunch. But since most workers and most organizations take a break during lunch, this is why this concept has become entrenched in the minds of Russians. The concept of a “lunch” break is not directly considered in the legislation, but a simple break is taken into account without fail.

Legal regulation of issues related to lunch breaks under the Labor Code is ensured by the provisions of the following articles of this document:

• Article 100. The issues regulated by the provisions of this article are devoted to working hours. Legislative standards directly oblige the employer to establish this regime in the provisions of the contract with workers, with a precise indication of the duration and time of the lunch break during work.
• Art. 108. This article regulates breaks and secures the right of every employee to receive such time during the working day. At the same time, this article regulates both the permissible duration of breaks and cases in which a break is not assigned.
• Article 109. The principles set forth in the standards of this article govern the warming and rest breaks that are provided to certain categories of employees. Such periods of time must be included in the working hours of workers.
• Article 224. This article regulates the procedure for providing special breaks for workers who require them due to their state of health and for medical reasons.
• Article 258. For mothers of children under 1.5 years of age, the legislator also provided for the right to receive regular breaks during work to feed their children. Moreover, such breaks have special legal regulation.

As you can understand, the categories of breaks according to the Labor Code of the Russian Federation are quite broad and include not only a lunch break, but also other types of rest for various categories of employees. But regardless of the number of additional breaks provided, a lunch break is an inalienable right of most workers.

Lunch break at 8 and 12 hour days according to the Labor Code

The most relevant for the majority of workers in the Russian Federation is a lunch break at 8 and 12 hour days. Its legal regulation is generally ensured by the standards of Article 108 of the Labor Code of the Russian Federation. According to its provisions, such a break must have strictly defined time intervals - from 30 to 120 minutes. However, the legislation does not establish a specific time for providing this break, leaving the decision on this to the discretion of the employer.

The legislation does not distinguish in any way between a lunch break in an 8-hour working day and a lunch break in a 12-hour working day. Moreover, even when working full-time, the break requirements for employees are identical.

The main feature of a lunch break according to the Labor Code of the Russian Federation is that its duration is not considered a working period. Accordingly, workers have the right to engage in any activity they wish, including leaving the territory of the enterprise and the workplace for a given period. If necessary, the employer has the right to define in local regulations several breaks at once during one working day - the main requirement in this case is compliance with the general minimum and maximum duration. That is, none of the breaks can last less than 30 minutes, and the total duration of all such breaks cannot exceed two hours during the working day.

If necessary, the employer has the right to provide employees with breaks that will be included in working hours, regulating their duration at its discretion without any restrictions. Thus, some organizations provide for the possibility of five-minute or ten-minute breaks for employees every hour or several hours, and these breaks are considered paid.

The employer has the right to independently determine the specific time for providing breaks during the day. At the same time, he can establish both a general break for all employees of the enterprise, and separate breaks for employees of different positions or different structural divisions of the organization, or even for each individual worker at different times.

When to skip a lunch break

Although a lunch break is considered mandatory for most workers, Russian legislation also provides for a number of situations in which it may not be carried out. Thus, if the nature of the work does not imply the possibility of providing lunch breaks, for example, due to the need to provide continuous customer service or to conduct production operations, then breaks may not be established. In this case, the trade union organization may require the employer to provide justification for depriving the employee of breaks.

However, when an organization has such a regime, the employer is obliged to provide workers with the opportunity to rest and eat during direct work. If it is impossible to eat and rest, workers have the right to file a complaint with the labor inspectorate against the actions of the employer and, upon inspection, he may be given either an administrative fine for violating the requirements of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, or a simple order on the mandatory introduction of breaks or the elimination of the inability of workers to eat and rest .

In addition, there is another situation in which lunch breaks according to the Labor Code of the Russian Federation may not be provided to workers at all. This applies to employees working on conditions if the duration of one shift does not exceed four hours. In this case, the break is not mandatory, but the employer has the right to establish it for such workers. This also applies to work, since its duration cannot exceed half of the working time at the main place of work.

If, when working part-time, the duration of one shift of an employee exceeds four hours, he must be provided with a break on a general basis without any restrictions on this right.

For remote workers and homeworkers, it is not possible to guarantee the provision of breaks due to the nature of this work activity. Therefore, the legislation allows such employees to independently determine their working hours.

Special breaks for certain categories of workers

In addition to lunch breaks, as mentioned earlier, various types of special rest periods are provided for certain categories of workers or specific activities. In particular, such breaks should be provided in the following situations: