A Capehart Scatchard Blog

Flex Time or Paid Break Time?

By on October 24, 2017 in Policy with 0 Comments

Even if employees are not provided with a lunch break, throughout the course of the workday there are, almost always, short periods of time where an employee is present in the workplace but not performing actual job tasks. Some examples include a walk to the restroom, time spent in the restroom, time spent grabbing a glass of water from the kitchen etc. Most employers do not dock employees’ pay for these short periods of time that an employee is not performing a job task but what if an employer wanted to dock employees’ pay for these breaks? What if an employer decided that the employee should only be paid for time when job tasks are actually performed and that any break time – whether the break is one minute or twenty minutes– would be unpaid? Would this be lawful? In a precedential decision entitled, Secretary United States Department of Labor v. American Future Systems, Inc. d/b/a Progressive Business Publications, No. 2-12-cv-067171 (3d Cir. October 13, 2017), the Third Circuit Court of Appeals analyzed this question and confirmed that any non-exempt employee breaks, which are less than twenty minutes in duration, must be paid breaks in order to comply with the Fair labor Standards Act (“FLSA”).

Facts of the Case

American Future Systems d/b/a Progressive Business Publications (“PBP”) is a company that employs sales representatives who are paid an hourly wage.  These employees also receive bonuses based upon the number of sales they receive per hour while they are logged into the system at their workstation.  PBP previously had a policy that employees were provided with two paid fifteen minute breaks per day.  In 2009, PBP changed its policy.  Under the new policy, employees are not provided with paid breaks but are allowed to log off of their computers at any time and for as long as they want to do so.  The employees are not paid for any time that they are logged off of the computer, no matter how long they were logged off.  The only exception is if an employee logged off and then logged back on within a period of 90 seconds, those 90 seconds will be considered paid time. PBP marketed its policy by explaining that it maximizes its employees’ ability to take a break from work at any time, for any reason and for as long as the employee desires (flex time).

Procedural History and Analysis/Decision

The Secretary for the United States Department of Labor (“DOL”) filed suit, alleging that PBP’s break policy violated the FLSA. The DOL argued that the policy failed to compensate sales employees for breaks of twenty minutes or less (minimum wage issue). PBP moved for summary judgment and the DOL moved for partial summary judgment regarding the minimum wage claim.  The District Court granted the Secretary’s motion regarding the minimum wage issue.  The District Court found that the FLSA had created a bright line rule that employees must be paid for breaks that are twenty minutes or less.  PBP then appealed to the Third Circuit.

The Third Circuit upheld the District Court’s decision that PBP’s break policy violated the FLSA.  The Court stated that it is well established that some breaks constitute hours worked under the FLSA. The FLSA does not require employers to provide breaks for employees, but if they choose to allow short breaks of five to twenty minutes, employers must pay employees for breaks that are twenty minutes or less. Even if an employee is not actually performing job duties during this twenty minute or less break, this period of time is considered hours worked. The Court stated that PBP’s new break policy forced employees to choose between going to the bathroom or getting paid unless the employee could get to the bathroom, relieve him/herself, and then get back to his/her computer station all within 90 seconds.  The Court found that the employer’s break policy was contrary to the FLSA.

What does this mean to you?

Employers should review their policies regarding breaks in the workplace to confirm that their policies are in compliance with the FLSA. Make sure that you are aware of how long employees spend on breaks during the workday. If the break time is twenty minutes or less, it must be paid time.


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