Tipped employees already provide challenges to employers, especially their payroll management. The Tennessee General Assembly just added another challenge. Effective May 17, 2012,  the state’s meal and rest break law has been amended to require meal breaks for tipped employees in the food and beverage industry. The new law, however,  also allows tipped employees to waive their right to meal breaks as long as their employers follow certain requirements. This bill may significantly impact the food and beverage industry especially if employees choose to take advantage of their right to a meal break forcing employers to adjust employment accordingly.

Currently under Tennessee law, employers must grant employees a 30-minute unpaid meal break for every 6 hours of consecutive work unless the nature of the business provides for plenty of opportunity  for employees to take a meal break, such as in a restaurant during slow periods. Prior to this recent amendment, Tennessee food and beverage employers were not obligated to give rest breaks to their tipped employees as the Tennessee Dept. Of Labor provided guidance to food and beverage employers noting that due to the nature of their business, there was usually plenty of opportunity to take a meal break. As a result of this TDOL guidance, employers in the food and beverage industry we allowed to not grant lunch breaks to their employees thus averting any disruptions in vital customer service.

This recent amendment, however, supersedes the Tennessee DOL’s guidance and requires employers in the industry to provide meal breaks to all tipped employees in food and beverages industry. However, the Tennessee General Assembly, realizing that the food and beverage industry may not appreciate this new rule,  inserted a provision in the law that allows tipped employees to waive their rights to unpaid meal breaks by signing a waiver request form. This lunch break waiver is also available to other industries. However, it is essential the employee voluntarily agrees to such a waiver.

To obtain a valid meal break waiver, an employer must develop a waiver request form that acknowledges an employee’s right to an unpaid meal break and allows the employee to knowingly and voluntarily waive that right.  In addition to providing a valid waiver request form, the employer also must post in at least one conspicuous place in the workplace a reasonable policy that permits employees to waive their meal breaks subject to the demands of the work environment. The employer’s meal break waiver policy must contain the employer’s waiver form, must identify the length of time the waiver will be effective, and outline the procedure for rescinding the waiver agreement. For a waiver to be valid, the employee must submit the waiver request knowingly and voluntarily and both the employer and employee must consent to the waiver. Employers cannot coerce the employee into waiving a meal break.

Any one wishing to get advice on the waiver form can call Time & Pay’s professional partner, SESCO, for consultation.