As a general rule, the Fair Labor Standards Act (FLSA) requires employers to pay employees for the short (i.e., less than 20 minutes) rest breaks they are allowed to take during the day. The FLSA regulations address this directly, stating “Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.” This seemingly straightforward rule has created challenges for employers when employees need frequent, short breaks for medical reasons or for things such as nursing or pumping breast milk. But earlier this month, the U.S. Department of Labor (DOL) issued an opinion letter that clarifies that short breaks do not need to be compensated in all cases.
Opinion Letter FLSA2018-19 was issued in response to an inquiry as to whether an employer had to pay an employee for all breaks where the employee’s doctor had certified a need for a 15-minute break every hour due to the employee’s serious health condition. In its analysis, the DOL cited a long-standing principle, set forth in 1944 by the U.S. Supreme Court in Armour & Co. v. Wantock, that compensability of time under the FLSA generally depends on whether the time spent is predominantly for the employer’s benefit or for the employee’s. Although the FLSA regulations regarding rest breaks do not reference this “predominant benefit” test, the DOL in its opinion letter suggests that the two are linked: it states that because breaks are “common in industry” and “promote the efficiency of the employee,” they predominantly benefit the employer and must be compensated.
The DOL then differentiated the standard circumstance where an employee is allowed one or two rest breaks per day to promote efficiency from the circumstance where an employee is taking a rest break every hour “solely due to the needs of the employee’s serious health condition.” The DOL stated that because the breaks described in the latter situation “are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable.” So while employers would still have to provide such employees the same number of paid breaks that they do to other employees, employers would not have to pay for breaks that are beyond what the employer normally allows. Employers should be careful in practice, however; if employers have a lax policy towards rest breaks and are flexible with how many breaks they allow employees, they will have to afford that same flexibility to employees who are taking breaks for health or other protected reasons.