The Law @ Work

No Break for Employers When it Comes to Compensating Employees for Short Breaks

by Marylou V. Fabbo

What would you do if an employee punched out to for a break at 12 p.m. and punched back in at 12:19?  If your answer is pay the employee for the 19 minutes the employee was actually punched out, then you would have done the right thing, and you might have been in the minority doing so.  An employer who charges employees for breaks that are 20 minutes or less is likely violating the Fair Labor Standards Act, according to the court in Perez v. American Future Sys., Inc. d/b/a Progressive Business Solutions (and many other cases that have come before it).

Progressive had what it considered to be a generous break policy for telephone sales personnel.  They were permitted to take breaks whenever they wanted, for any reason, and were relieved of all duty with one caveat:  They were required to log off their computers when doing so, which was the equivalent of punching out.  The Secretary of Labor filed suit behalf of the affected employees claiming that workday breaks of 20 minutes or less are compensable time under the FLSA and that the employees had not been fully compensated as they had been docked for breaks less than 21 minutes.   In response, Progressive argued that since the employees used their breaks for their own purposes rather than for the company’s benefit, the breaks did not increase worker productivity and therefore were not compensable.  The Court was not persuaded by Progressive’s argument.  It acknowledged the Secretary’s point that breaks of 20 minutes or less are of such duration that, by their very nature, they could not be used for “whatever personal task” as Progressive stated they could.  The Court also noted that the FLSA does not require an employer to provide its employees with rest periods or breaks, and if the employer decides to permit short breaks, the time is compensable hours worked.  As an aside, and without prompting by the parties, the Court also declared that the rule did not apply to unauthorized extensions of authorized breaks or breaks for the purpose of expressing breast milk.

While the recent Perez case arises out of Pennsylvania, it is but one in a line of cases years long that have reinforced the 20-minute rule.  In most cases, employees wanting to take a smoke break outside or make a call do not punch out on a time clock.  However, other means of recording time such as logging on and off a computer are becoming more common and may result in an employer simply overlooking time that should be compensated.  Employers are wise to review time records each week rather than to blindly pay wages according to a computerized record of hours worked and to have a written policy in place setting forth specific means by which employees can bring to the employer’s attention errors in their pay.

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