We like to bring employers simple tips that can head off problems before they start.  Here’s one that comes from a recent decision from the U.S. Third Circuit Court of Appeals, which covers New Jersey, Pennsylvania, Delaware and (yes) the Virgin Islands.  The tip is this: do not dock workers’ pay for taking short rest breaks.  Here’s why.

The Fair Labor Standards Act is the federal minimum wage law.  The FLSA, as interpreted by Department of Labor Regulation 29 CFR 785.18, generally treats short breaks of 5 to 20 minutes as compensable time.  That is, employees have to be paid for such short break time.  This is simple enough so far.  But someone always tries to throw a monkey wrench  into the simple stuff.

In Sec’y U.S. Dep’t of Labor v. American Future Systems, Inc. (3rd Cir. October 13, 2017) we learn of the defendant AFS’s effort to end-run the regulation and avoid paying sales people for breaks.  Departing from its previous practice of giving its employees two 15 minute breaks daily, AFS established what it called a “flex time” policy.  Employees were allowed to take as many breaks as they wanted, for as long as they wanted.  They were paid for the breaks only if kept to 90 seconds or less, measured by the time the workers were logged off of their computers.  However, they were still required to estimate the time they would work in each two week pay period and were subject to discipline, including termination, for failing to make their hours.  AFS had other restrictions and controls on the employees as well.

The DOL sued and won on the theory that this scheme failed to pay employees the federal minimum  wage and violated statutorily required record keeping of hours worked.  The court noted that employees must be paid for “hours worked.”  While the FLSA does not obligate an employer to provide any breaks, if it chooses to allow them it must pay for breaks of 5 to 20 minutes as part of the “hours worked.”  Among other things, the court had fun envisioning how employees might log off their computers, dash to the bathroom and get back within 90 seconds to avoid being docked for the time.  Citing to the Harry Potter books the court suggested that a Portakey — a device designed to transport wizards from place to place in a manner somewhat like a Star Trek transporter — might be an option.  In the real life 21st century, however, that isn’t about to happen.

In any case, you see where this is headed.  The law recognizes that employees are human beings with needs to be addressed.  Short breaks to deal with those needs are a part of life and a part of the law.  In this case, one company’s attempt not to pay for break time failed miserably.