October 27th, 2017

A Rest Break By Any Other Name is Still a Rest Break Under FLSA

Employers are required under the Fair Labor Standards Act (“FLSA”) to pay their employees for breaks that are 20 minutes or less in duration.  The Third Circuit Court of Appeals (the “Court”), which covers Pennsylvania, Delaware, New Jersey and the Virgin Islands, recently reconfirmed this longstanding and unchanging rule of the Department of Labor, Wage and Hour Division (the “DOL”).

The Court’s decision that found that an employer’s “flexible time” policy was in violation of the FLSA.  Under that flexible time policy, the employer allowed employees to log off of their computer workstations during the workday at any time, for any reason, and for any duration.  However, the employer would stop paying the employee after they were logged off of their workstation for more than 90 seconds.  In reviewing the “flexible time” policy, the Court emphasized that the FLSA is a “humanitarian and remedial legislation” that is to be liberally interpreted and the subject policy unlawfully forced employees to pick between “such basic necessities as going to the bathroom and getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than 90 seconds.”  The Court found such a policy “absolutely contrary to the FLSA” and pointed to the bright-line rule contained in 29 C.F.R. §785.18, which states that rest breaks of short duration, running from 5 minutes to about 20 minutes, are compensable. The Court warned that this rule cannot be circumvented simply by calling a break policy by a different name. The Court further confirmed that the rule contained in 29 C.F.R. §785.16 only applies to situations where the subject break is more than 20 minutes, and thus, was inapplicable to the subject “flexible time” policy.

The ramifications of disregarding these rules are significant as the subject employer learned when the Court affirmed that the employer was liable for the unpaid wages plus an additional equal amount as mandatory liquidated damages. Overall, this recent decision serves as a reminder that the DOL views, and the Third Circuit agrees, that breaks of 20 minutes or less are insufficient to allow the employee to do any activity or inactivity other than one that inures to the benefit of the employer and therefore, will be considered hours worked and compensable.


Attorney Loren Speziale frequently represents employers in cases involving overtime and compensation policies as well as general employment matters.