FLSA 101: When do you have to pay employees for rest breaks?

Twenty dollar bills

This Tuesday blog post is brought to you by the number 20. As in, when your non-exempt employees go on break for 20 minutes or less, you need to pay them for that time.

A “bright-line rule.”

The regulations to the Fair Labor Standards Act say (here) that “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.” And, right before the end of 2015, Judge L. Felipe Restrepo, a recently-confirmed Third Circuit judge, concluded (in this opinion) that the FLSA regulation about short rest breaks being compensable time is a “bright-line rule.”

Ok, there are a few exceptions.

But don’t feel too bad about having this brightish-line rule being applied to this particular employer. You see, this company supposedly docked non-exempt employees for the time they spent going number 1 and number 2.

How to curtail employee abuse of break time.

You wouldn’t do that, would you? (Or this). But, unauthorized extensions of authorized employer breaks are not counted as hours worked for an employee when the company clearly communicates to employees that:

  • The authorized break may only last for a specific length of time;
  • Any extension of such break is contrary to the employer’s rules; and
  • Any extension of such a break will be punished.

Don’t just take my word on it. This is straight from the DOL Field Investigator’s Handbook. And, of course, if the breaks are unauthorized, you can discipline for that too. I suggest thumb screws counseling.

Image Credit: By Merzperson at English Wikipedia (Transferred from en.wikipedia to Commons.) [Public domain], via Wikimedia Commons
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