United States: Putting The Compensability Brakes On Frequent Employee Breaks

Are frequent and short work breaks necessitated by an employee's serious health condition considered "compensable" time under the Fair Labor Standards Act (FLSA)? Last week, the Department of Labor, Wage and Hour Department (WHD) issued an "opinion letter," a written response to an employer's question on how a particular law applies in a specific circumstance, answering this question, which is no doubt faced by other employers.

Specifically, the employer's employees' required 15-minute breaks every hour for serious health conditions under the Family Medical Leave Act (FMLA). In an eight-hour shift, the employees were on break for two hours. Under the FLSA, breaks up to 20 minutes are predominantly for an employer's benefit and compensable under the law. As such, the employer questioned whether each of these eight 15-minute breaks was compensable under the FLSA.

The WHD letter differentiated ordinary rest breaks from FMLA-protected breaks. Ordinary breaks promote employee efficiency, primarily benefitting the employer. Frequent FMLA-protected breaks are driven by employee needs and primarily benefit the employee, per the opinion letter. Only breaks that benefit an employer are compensable.

WHD ultimately concluded the employer was not required to compensate employees for the FMLA-protected breaks with one caveat. Compensable breaks given to all employees should likewise be compensable for employees taking FMLA-protected breaks. Breaks over and above those given to all employees are not compensable, however. For illustrative purposes, the WHD letter stated if the employer gave all eight-hour employees two 15-minute compensable breaks, the employer was required to give two 15-minute FMLA-protected compensable breaks. The other six breaks in the eight-hour shift would be non-compensable.

The WHD does not enforce the Americans with Disabilities Act (ADA), so the letter does not go on to address breaks that are reasonable accommodations for a disability. For compensation purposes though, we recommend treating ADA-protected breaks the same as FMLA-protected breaks. Pay the employee for the number of breaks given to all employees. The extra disability-protected breaks are for the needs of the employee and not compensable under the FLSA

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