Does an employer who has you as a 1099 employee on hourly wage have to give a 10 minute break after a 1 hour lunch break?

UPDATED: Sep 30, 2022

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Does an employer who has you as a 1099 employee on hourly wage have to give a 10 minute break after a 1 hour lunch break?

I am an hourly employee that was hired as a 1099. I work 3 hours in the morning

from 9 am to 12 pm and have a 1 hour unpaid lunch. I then work from 1 pm until 7 pm, without a 10 minute break. Is this legal? Am I allowed at 10 minute break

in the afternoon?

Asked on September 20, 2016 under Employment Labor Law, Florida


Micah Longo / The Longo Firm

Answered 6 years ago | Contributor

If your employer is telling you you can't take a break, then you should not be classified as a 1099 employee.  Whether or not you should be classified as a W-2 or 1099 depends upon the level of control by your employer.  If you were a true 1099 - Independent Contractor you could take a lunch break whenever you wanted.  By being classified as a 1099 - Independent Contractor you pay more in taxes.  There is an SS-8 form you can fill out and submit to the IRS to determine your status.  
Now, as a W-2 employee in Florida, your employer would be requried to give you at least a 30-minute unpaid break for every 4 hours of work.  Also of note, under federal law, employers are not required to give lunch breaks.  If you do get a lunch break of 30 minutes or more and you're required to work through your lunch break your employer must pay you for the time.  
(This is not legal advice - you pay for legal advice - This is free)

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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