Pursuant to U.S. Department of Labor regulations, generally, meal breaks that last 30 minutes or longer are non-compensable working time, meaning that employers generally need not pay nonexempt employees during their meal breaks, explains employment attorneys Jill Vorobiev and Mallory McCarthy.

However, a truly non-compensable meal break is one in which an employee is completely relieved from performing their work duties during their meal break. Even the performance of inactive work duties during an employee’s meal break may create an inference of compensable time.

As such, there are certain circumstances under which an employer may be on the hook for paying an employee during their meal break. For example, if an employer requires an employee to remain at their desk during their lunch break and the employer expects or requires the employee to perform any work that comes to the employee during their lunch break, a court or agency could view this as compensable time, meaning that the employer must pay the employee for this time.

Relatedly, employers must keep in mind that many states regulate the availability of meal and rest breaks, as well as the compensability of such breaks. Employers should review any applicable state regulations to ensure compliance.

If the break is unpaid, the employee needs to be away from all work functions, says HR Manager Kim Schrader.

Once an employee performs any function of their work, the time becomes compensable. For example, once a question is asked to the employee, an email is checked, or even a note is written down, the time is compensable. I’d recommend that employees have a location where they can take breaks away from all functions of their work so there is no question. If breaks are paid, then it doesn’t matter whether an employee sits at their desk or somewhere else.

State law often speaks to meal and rest periods, so always consult the regulatory requirements, says Recruiter Carmela Bozulich.

But an unpaid meal period is just that, and if an employee is required to be available for work during that time, then it would be considered an on-duty meal period, and they would need to be paid for it, in addition to any overtime or penalty pay or other compensation that might apply.

If the employer allows employees to be free of all work duties during the break, then it can be unpaid time, according to VP of HR Jackie Plunkett. But if an employee is “on call” or asked to work, answers a phone call, or engages in work during the break, then it may be compensable.

To ensure breaks are truly non-compensable, ask employees who take breaks at their desks to silence/forward phone calls, close their email, and if approached for work, tell co-workers that they’re on break.