Courts weigh-in on whether or not breaks are to be paid

by Michael Haberman on October 25, 2017 · 1 comment


Having employees clock out for breaks does not nullify the requirement that breaks under 20 minutes in length must be compensated.

I find it amazing sometimes the extent to which employers go to try to get around rules. The Fair Labor Standards Act says that, while breaks are not required for nonexempt hourly employees, if an employer allows breaks then they must be paid if they are twenty minutes or less in length. The concept is that employees are to be paid for a continuous workday, excepting bona fide lunch or meal breaks of 30 minutes or more. I started my HR career working in a plant environment where we had three, around the clock shifts of 8 hours. There was no meal time, as this would require the employees to work less than 8 hours and they did not want to be shorted time. They were given two 15 minute breaks for which they were paid. All of that complied with the FLSA. I thought it was simple, but some employers have tried to get creative.

Clocking out

One company had a “flex-time” rule that allowed employees to sign-off of their computers and be gone from their workstation for whatever amount of time they desired. Of course, they were not paid for this time. The company argued that if they were fully relieved of duties they were not due any compensation. This included the amount of time they were away on breaks.Unfortunately for the company, the court did not agree with their interpretation. According to Michael Freimann and Martine Tariot Wells of Brownstein Hyatt Farber Schreck:

“…the court concluded that the rest period regulation should be appropriately be characterized as a bright line rule- that rest periods of 20 minutes and less are compensable time and policies cannot circumvent this.”

These attorneys make the comment, and I tend to agree, that the most risk-aversive action an employer can take is to “pay to punch”, meaning that the employee is compensated from the time they clock in until they clock out, regardless of what they do during that time. The courts expect employers to deal with a lack of productivity or ignoring company rules through the disciplinary process. If an employee is not coming back from a break on time then you can discipline, and even fire them, for not following the rules. Courts do not like employers withholding pay. Think twice about any such policy. If you have such a policy you need to consider a revision.

This court decision only applies to the Third Circuit, which is the Northeast, but other courts would most likely agree, so avoid having such a policy.


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