Are you losing that much money that you dock people if they take more than 90 seconds in the bathroom?

by Michael Haberman on June 13, 2018 · 1 comment


This is one way to avoid paying for breaks!

I read about a court case that made it past the U.S. Court of Appeals, for consideration by the Supreme Court of the United States (SCOTUS) but was rejected by them. The case involves a telemarketing firm that gives 90 seconds as the appropriate amount of time to go to the bathroom. If the employee cannot do their “business” in that amount of time they were docked and the extra time was deducted from their paycheck!

As you can imagine the employees thought this was unfair and they complained to the USDOL who brought suit against the company. The 3rd Circuit Court, which has jurisdiction in Delaware, New Jersey, Pennsylvania and the Virgin Islands, ruled in favor of the employees. The company appealed and want the SCOTUS to rule on break time payments. They refused.

What the company said

When the company was told that they were not following the Fair Labor Standard Act (FLSA) regulations on break time, the company objected. They were told that the regulations require companies to pay for allowed breaks that were under 20 minutes. The company responded that they have a “flex” policy that allows employees to clock out anytime they want and for any reason and thus employees could potentially take a 19-minute break every hour. The court responded that companies can control the number of breaks and thus restrict the number of breaks. Indeed, many companies have a practice of one break every 4 hours of work. That is pretty standard procedure for many, many organizations. The court told the company that their “flex” policy did not meet the smell test. “The court was not persuaded, saying that to dock the pay of employees who can’t manage a bathroom sprint is “absolutely contrary to the FLSA.” The 3rd Circuit Court upheld a $1.75 million judgment against the company. By refusing to hear the case the SCOTUS has done the same thing.

Administrative controls

The company’s argument of runaway break time was pooh-poohed (I am sure that is the legal term) by the court by saying there were administrative controls in place to control breaks. The FLSA does not require breaks at all, but we all know that is unreasonable and could catapult you into ADA considerations. You can control abuse of breaks by discipline, which 1000s of companies do. Or you could have a company culture that just does not get that uptight about it. If you focus on productivity and not time it doesn’t matter. Oh, wait a minute the government does make us pay on time and not productivity, so ignore that last statement. What you CANNOT do is dock people’s pay for going to the bathroom if they take less than 20 minutes.

Of course, you could also issue a “motorman’s helper” to all employees.


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{ 1 comment… read it below or add one }

Ben Halverson June 25, 2018 at 4:23 pm

I worked for an employer who did this and they we’re eventually ordered to backpay employees this happened to.

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