Paying Employees During Short Rest Breaks

Q: Do I need to pay non-exempt employees when they go on short rest breaks of 20 minutes or less?

A: Yes.

The United States Department of Labor (“DOL”) has long taken the position that when employers offer non-exempt employees short breaks of under 20 minutes, the time spent on that break is “compensable” under the federal Fair Labor Standards Act (“FLSA”).

Recently, the United States Court of Appeals for the Third Circuit (which has jurisdiction over employers in Pennsylvania, New Jersey and Delaware) adopted the DOL’s position in a case brought by the DOL against American Future Systems, d/b/a Progressive Business Publications (“Progressive”). The Court concluded that the FLSA “does require employers to compensate employees for all rest breaks of twenty minutes or less.”

The facts of the case are as follows: Progressive’s sales representatives are hourly, non-exempt employees. In 2009, Progressive eliminated paid breaks but implemented a policy called “flexible time,” allowing employees to log-off their computers at any time. However, Progressive only paid employees if they were logged off their computer for less than 90 seconds. If an employee took more than 90 seconds to go to the bathroom, get a cup of coffee, or decompress from a particularly tough sales call, Progressive did not pay the employee.

The FLSA requires that employees are paid for all hours “worked,” but does not define the term “work.” Referring to the FLSA as “humanitarian and remedial legislation” which is to be liberally interpreted, the Third Circuit concluded that the brief periods spent by Progressive’s sales representatives when they logged off the computer clearly were compensable breaks under the FLSA. As the Court reasoned,  “[Progressive’s policy] forces employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than ninety seconds. If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than ninety seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee’s computer.” The Court concluded that this result is contrary to the FLSA and that Progressive’s “flexible time” policy was merely an attempt to circumvent the FLSA’s rules regarding compensable time.

Not all breaks are compensable under the FLSA. For example, the DOL takes the position that bona fide uninterrupted meal periods of 30 minutes or more are non-compensable.

The lesson from this case? Employers should review their policies and practices to ensure that employees are compensated for all types of breaks that are 20 minutes or less. This is true even if an employee violates the company’s break policy. The employee may be disciplined for violating the break policy, but he/she still must be paid.  The good news is that paying for short rest breaks will improve employee morale and avoid liability under the FLSA.

Lee E. Tankle

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