Payroll, Here Are Your Articles for Wednesday, September 19, 2018
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When Do Employees Have to Be Paid for a 'Break'?


The DOL issued an opinion letter earlier this year in response to the following issue: Should nonexempt employees who require 15-minute breaks every hour because of an illness that qualifies as a serious health condition under the Family Medical Leave Act be paid for the breaks? By taking 15-minute breaks every hour, the employees end up working only six hours per day instead of eight hours.

The letter takes into account that the employees provided their employers with FMLA certifications from their health care providers to back up their claim of needing to take frequent breaks because of their serious health condition.

DOL response

According to the DOL's opinion letter, under the Fair Labor Standards Act, employers must pay employees for short breaks, typically lasting around five to 20 minutes, because "they primarily benefit the employer." In rare cases, however, "short rest breaks primarily benefit the employee and therefore are not compensable."

FMLA-covered breaks fall in the latter category, which means these do not need to be paid breaks, as they primarily benefit the employee.

The DOL cites the case of Spiteri v. AT&T Holdings, Inc. as the basis for its conclusion. In that case, a federal court held that the plaintiff/employee did not need to be paid for frequent breaks taken to relieve his back pain because those types of breaks — also called "accommodation breaks" — primarily benefit the employee. The court also noted that the FLSA does not allow employees to take unlimited personal rest breaks under 20 minutes nor does it require payment for such breaks.

The DOL argued that 15-minute breaks taken every hour because of an FMLA-protected serious health condition are not compensable because they match more closely with the accommodation breaks in the Spiteri case than with breaks provided for the employer's benefit. The agency also asserted that the FMLA itself allows for unpaid leave and does not make any exceptions for short breaks.

What's the takeaway?

As stated by the DOL, an employee who takes FMLA-protected breaks is entitled to the same paid breaks that his or her coworkers receive. Therefore, if the employee takes unpaid 15-minute breaks every hour, and company policy says each employee must receive two paid 15-minute breaks per workday, then the employee must be compensated for two 15-minute breaks.

When dealing with accommodation breaks, it's important to follow not just the FMLA and FLSA but also state law. For example, the FLSA and many states require break time for nursing mothers — also called lactation breaks. These breaks are unpaid because they predominantly benefit the employee.

If possible, the employee should take lactation breaks during her regular rest and meal breaks. But if extra time is needed, it should be granted.


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