Monday, October 16, 2017

3d Cir: Pay Employees for Breaks Under 20 Minutes

Ah, the miracle of computers. If employees work on computers, employers can track whether they are working right down to the exact minute. That's what the employer did in Sec. U.S. Dept. of Labor v. American Future Sys., Inc. If employees were logged off for more than 90 seconds, they did not get paid for that time.

This runs counter to the Department of Labor's regulations regarding short breaks:
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Not official use.
29 C.F.R. § 785.18. Ultimately, the Third Circuit (jurisdiction including Pennsylvania) adopted this bright line rule, holding that "the Fair Labor Standards Act does require employers to compensate employees for all rest breaks of twenty minutes or

This is a bright line rule that prevents absurdities like forcing employees off the clock for two-minute bathroom breaks. However, as the employer (and some amici) argued, it also limits the flexibility of the employees. One child advocacy group even argued that it harms children because it will prevent parents who work from home from taking short breaks to "address child-related needs."

Before: These employees could take breaks whenever they wanted for whatever reason they wanted, so long as they logged off. That's good on flexibility, but they don't get paid for short breaks, which harms their bottom line.

After: We don't know for certain yet. I have counseled employers that the FLSA requires them to pay for breaks under 20 minutes for years (based on the regulation). The usual result is that they adopt a policy that employees only get one or two paid breaks (sometimes one in the morning and one in the afternoon) of 15 minutes. That's not very flexible - but, without such a policy employers run the risk of employees taking any number of paid 20 minute breaks throughout the day. That's simply not a viable business practice.

* None of this applies to bona fide meal breaks of 30 minutes or more, which are generally unpaid.