Should You Get Paid for Breaks at Work?

In a recent case out of Pennsylvania, an employer tried to put a new spin on what has long been considered a bright-line rule providing that short breaks from work of twenty minutes or less constitute compensable time for which workers must be paid. The court ruled against the employer, upholding the lower court’s decision in the case and the longstanding rule that “hours worked” includes short breaks of 20 minutes or less, even though no actual work is being done.

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Does This Time Really Matter?

While the amounts of time involved in cases such as this may seem small, when looked at over periods of months and years, it can add up to a significant amount of wages that an employer avoids paying – and of which employees are deprived.

In this case, it amounted to at least $1.75 million in back wages and damages. The Pennsylvania case was filed on behalf of sales representatives who were paid hourly plus bonuses based on sales per hour only for the time they were logged into their computers – and were not paid for any time if they logged out for breaks longer than 90 seconds.

“Flex Time” Versus Breaks

While federal labor laws provide that breaks of 20 minutes or less are to be counted as hours worked, the company argued that it didn’t provide “breaks,” instead, it had “flex time” that allowed workers to go clock out whenever they wanted, and essentially do anything they wanted while clocked-out.

The judge did not buy it, commenting that this type of policy:

“forces employees to choose between such basic necessities as going to the bathroom or 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 ninety seconds” and that docking the pay of employees who can’t pull this off is “absolutely contrary to the FLSA.”

Taking Advantage of the 20 Minute Break Rule – and how to stop it

The company also argued that the bright-line, 20-minute rule isn’t realistic in practice as it could allow workers to game the system and take as many paid 19-minute breaks as they desire, and the company would have to pay them for all of them. The judge recognized this, but stated that, as with many FLSA issues, companies are free to set rules and enforce them.

If an employee violates an employer’s break policy and repeatedly takes just under 20 minute breaks, the employee can be disciplined – but cannot have pay withheld. This is the same thing that happens when an employee performs unauthorized overtime or works through what is supposed to be an unpaid lunch break. Pay, but discipline. And if the misconduct continues, termination can result.

The Bottom Line on Short Breaks – Some Count as Time Worked

What legally counts as “hours worked” (and included when determining overtime pay) is not limited to the time a worker actually performs his or her job duties. While the federal wage laws do not require employers to provide breaks to workers, if they do provide breaks of 5 to 20 minutes, they are required to count break time as hours worked and pay for the time. For more information on FLSA breaks, contact us or submit your information using our convenient Case Evaluation form for a FREE and CONFIDENTIAL review of your circumstances.

Michael Lore is the founder of The Lore Law Firm. For over 25 years, his law practice and experience extend from representing individuals in all aspects of labor & employment law, with a concentration in class and collective actions seeking to recover unpaid back overtime wages, to matters involving executive severance negotiations, non-compete provisions and serious personal injury (work and non-work related). He has handled matters both in the state and federal courts nationwide as well as via related administrative agencies. If you have any questions about this article, you can contact Michael by using our chat functionality.