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DOL: No need to pay employees for multiple FMLA breaks

Posted April 26, 2018

Joe Employee suffered a back injury, which made his job a bit of a challenge. He was fine, however, if he took a 15-minute break each and every hour. The problem was that giving those breaks meant that Joe actually worked only six hours in an otherwise eight-hour work day. Chelsea, the HR manager, wondered if Joe was actually entitled to pay for eight hours, since he worked only six and was non-exempt. She knew that, under the Fair Labor Standards Act (FLSA), breaks of up to 20 minutes were generally compensable, but this situation seemed to be different, as there were so many breaks.

The DOL to the rescue

In a recent opinion letter, the U.S. Department of Labor provided an answer, indicating that, while a couple of breaks per day benefit the employer because the breaks help reenergize employees, eight such breaks given to accommodate an employee’s Family and Medical Leave Act (FMLA) serious health condition predominantly benefit the employee and are, therefore, noncompensable.

The FLSA, as a general matter, requires employers to compensate employees for their work. The FLSA defines “employ” as including “to suffer or permit to work,” but does not explicitly define what constitutes compensable work. The U.S. Supreme Court has noted that the compensability of an employee’s time depends on “[w]hether [it] is spent predominantly for the employer’s benefit or for the employee’s.” Joe Employee’s multiple breaks benefitted him.

The text of the FMLA itself further confirms that employees are not entitled to compensation for such FMLA-protected breaks. The FMLA expressly provides that FMLA-protected leave may be unpaid, and it provides no exceptions for breaks up to 20 minutes in length.

Therefore, if you have employees who are taking more than the usual number of breaks during the workday due to an FMLA serious health condition, you need not pay the employees for the extra breaks.

Employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, if you generally allow all of your employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks during his or her 8-hour shift.

This article was written by Darlene M. Clabault of J. J. Keller & Associates, Inc.

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