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September 13, 2018

Are Employee Breaks Compensable?

By:  Andrew Scott, Esquire

The United States Department of Labor (DOL) recently issued an opinion letter determining whether non-exempt employees’ 15-minute rest breaks were compensable time under the Fair Labor Standards Act (FLSA).  The employees at issue required 15-minute rest breaks every hour, as certified by their health care provider, due to a serious health condition.  The opinion begins by acknowledging that the compensability of an employee’s time depends on whether it is spent predominately for the employer’s benefit or for the employee’s, and that short rest breaks up to 20 minutes benefit the employer by promoting efficiency and creating reenergized employees and thus are typically compensable.  Even so, the DOL opinion acknowledged that, in limited circumstances, short breaks primarily benefit the employee and therefore are not compensable.  Specifically, when an employee’s breaks differ from ordinary rest breaks or are “solely due to the needs of the employee’s health condition,” the breaks primarily benefit the employee.  Consequently, frequent health-related breaks are not compensable so long as the employees taking the breaks also receive as many compensable rest breaks as their coworkers.  Lastly, the DOL noted that the Family Medical Leave Act (FMLA) further confirms that employees are not entitled to compensation for FMLA-protected breaks since the FMLA provides that FMLA-protected leave may be unpaid and there are no exceptions in the FMLA for breaks up to 20 minutes in length.

 

Andrew Scott is a Member of PK Law and part of the firm’s Labor and Employment Group. He represents private sector employers and public schools before federal and state courts, federal and state civil rights agencies, and the Maryland Office of Administrative Hearings on a variety of matters, including employment discrimination litigation, collective bargaining, teacher and student discipline, construction and procurement, and wage and hour claims. Mr. Scott also advises clients on the design and implementation of employment agreements, employee handbooks, policies and procedures.  Mr. Scott can be reached at 410-339-6744 or ascott@pklaw.com.