The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "The Law Q&A," ran in the Champaign News-Gazette. 

Question

Should I get paid for my lunch hour? And does it count toward the 40 hours a week that lead to overtime? If I’m not paid for it, can I skip lunch and leave early?

Answer

In most cases, employers don’t have to pay for your lunch hour . Unpaid meal periods don’t count toward the 40 hours that trigger overtime. And, you can’t make your employer let you skip lunch to leave early.

Both federal and state laws govern wages and hours. Federal law doesn’t require meal breaks, but Illinois law does. If you work at least 7.5 hours a day, it entitles you to a 20 minute meal period. That meal period must begin “no later than 5 hours after the start of the work period.” Further, an employee who works more than 7.5 continuous hours is entitled to an additional 20-minute meal period for every additional 4.5 continuous hours worked.

That’s required by the One Day Rest in Seven Act. As the name suggests, this law also entitles Illinois workers to one day off each week. The law assumes you get Sunday off, and requires your employer to tell you ahead of time if you don’t.

The ODRISA applies to most employers, but not all employees. In particular, it doesn’t apply to part-time employees, who are defined as “employees whose total work hours for one employer during a calendar week do not exceed 20.” Moreover, most employees in mining and agriculture aren't covered by ODRISA. And, ODRISA doesn't apply at all if there is an emergency requiring "competent labor."

Federal law says true meal periods aren’t paid, but rest periods are. According to the federal regulations, “bona fide meal times (typically lasting at least 30 minutes), serve a different purpose than coffee or snack breaks and, thus, do not work time and are not compensable.”

Those regulations go on to emphasize that “bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods.”

For it to be a real meal period, you “must be completely relieved from duty for the purposes of eating regular meals.” It’s not a meal period if you’re “required to perform any duties, whether active or inactive while eating.” If you’re required to eat at your desk for office workers, or at your machine for factory workers, then you should be paid

The Illinois regulations are a bit fuzzier, and say meal periods are “compensable” when your time “is spent predominantly for the benefit of the employer, rather than for the employee.”

If it is a real meal period, employers do not have to let you “leave the premises.” The meal period that Illinois law can require is a minimum 20 minutes. Federal regulations, however, suggest that meal periods should last at least 30 minutes unless there are “special conditions.”

Both federal and Illinois law require time-and-a-half pay for work in excess of 40 hours a week. Who’s covered by those overtime laws? It can get complicated. If you find that your meal periods are truly working periods, then those hours do count as "hours worked" for overtime purposes.

Finally, your employer can set your hours. If the law says they must give you a meal period but didn’t so you can leave early, there’d probably be problems.