Our earlier post about the U.S. Labor Department's position on unauthorized extensions of rest breaks has generated additional comments and questions.   We have responded to one comment at length beneath the post itself.

Another reader took the Labor Department's interpretation to mean that, if an employee impermissibly extends his or her rest break, then the whole rest break could be treated as non-compensable time under the federal Fair Labor Standards Act.  In that reader's view, for example, if an employee stretches a ten-minute rest break to 20 minutes, then the full 20-minute period could be excluded from worktime, rather than only the additional ten minutes.

The Labor Department has said that this is not the case.  In Opinion Letter of Wage-Hour Acting Administrator FLSA2001-16 (May 19, 2001), an employer asked the U.S. Wage and Hour Division whether an employee's unauthorized extension of a rest break under the conditions in Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000), allowed the exclusion of the entire rest break from compensable time.  According to the Acting Administrator, "[o]nly the length of the unauthorized extension of an authorized break will not be considered hours worked when the three conditions are met, not the entire break."  In our illustration, then, the Labor Department would say that only the additional ten minutes could be treated as non-compensable time.

It also appears that some readers were not distinguishing among different kinds of breaks.  For purposes of what is and is not FLSA worktime under Labor Department interpretations, it can be useful to view scheduled breaks as falling into essentially three categories:

◊   Bona fide meal breaks, which are typically noncompensable time (29 C.F.R. § 785.19);

◊   "Short" rest breaks of "about 20 minutes" or less, which the Labor Department says are typically compensable time (29 C.F.R. § 785.18); and

◊   Break periods which are neither meal breaks nor "short" rest breaks, which might or might not be compensable time  (Section 31a01(b), Field Operations Handbook (U.S. Labor Department, December 15, 2000), link to reproduction below).

Employers should evaluate these categories differently in deciding whether and to what extent to treat them as being compensable hours worked under the FLSA.

And once again, employers must also be aware of and comply with whatever are the applicable break obligations of a state or another jurisdiction.

FOH 31a01b 12 15 00.pdf (34.71 kb)

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Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday.  It treats these breaks as paid worktime.  Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break.  Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect.  Could Acme start considering the over-10-minute extensions to be unpaid time?

The U.S. Labor Department has said that this is permitted under the federal Fair Labor Standards Act, if an employer makes its intentions clear in advance.

The FLSA does not require employers to give rest breaks (which should be distinguished from lactation breaks, which are required).  Many employers do give rest breaks, of course, and the Labor Department's position is that short periods like this (typically running from five to about 20 minutes) count as worktime for employees who are subject to the FLSA's minimum-wage and/or overtime requirements.  In the Labor Department's view, such breaks mainly have the effect of promoting employee efficiency, so they cannot be deducted from or offset against other compensable time.

Consequently, many employers assume that, when an employee stretches a ten-minute break to 20 minutes, the FLSA does not allow the additional ten minutes to be treated as non-compensable time.  On the contrary, the Labor Department's internal enforcement manual takes the position that unauthorized break extensions need not be considered worktime, so long as the employer has expressly and unambiguously told employees that:

◊   Authorized breaks may last only for a specific length of time;

◊   Any extension of those breaks is against the rules; and

◊   Any extension of those breaks will be punished.

Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000)(link to reproduction below).

Any employer looking to rely upon this position in the future would be well-advised to adopt a written break policy that includes these points and makes clear that unauthorized extensions will not be counted as worktime.  It should also be able to show that employees are aware of the policy.

Remember that many states impose rest-break rules of their own.  Employers must also be aware of and comply with whatever the applicable obligations are.  A state need not follow FLSA interpretations with respect to breaks, including as to whether unauthorized extensions of breaks are or are not to be counted as worktime under the state's own break requirements or under its other laws relating to hours worked.

 FOH 31a01 12 15 00.pdf (27.36 kb)

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Our July 5 post prompted a question about whether an established meal period of less than 30 minutes must be considered worktime under the federal Fair Labor Standards Act.  The answer is, "Not necessarily".

U.S. Labor Department interpretations state that bona fide meal periods during which employees are completely relieved from duty in order to eat regular meals are not FLSA worktime.  See 29 C.F.R. § 785.19(a).  This provision also says that "ordinarily" 30 minutes or more is long enough for such a period.  This has led many people (sometimes including even U.S. Wage and Hour Division officials) to insist that, if an employer maintains a meal period of less than 30 minutes, the mealtime must be considered hours worked under the FLSA.

But the Labor Department's own interpretation recognizes that a shorter timeframe can be long enough "under special conditions."  Among the special conditions the Labor Department looks for are these:

•   Any work-related interruptions of the meal period are sporadic and minimal;

•   Employees have enough time to eat a regular meal under the circumstances;

•   The period is not just a break for snacks or coffee but instead allows the employee to eat a full meal, comes at a time when meals are normally consumed, and occurs with a frequency that is customary for regular meals;

•   The employer and employees have agreed that a period of less than 30 minutes is sufficient to eat a regular meal; and

•   Applicable state or local laws do not require a longer meal period than the one established.

Section 31b23, Field Operations Handbook (U.S. Labor Department, December 15, 2000).

The Labor Department reviews these factors on a case-by-case basis, taking into account the particular context involved.  U.S. Wage and Hour Investigators are instructed to give "special scrutiny" to meal periods of less than 20 minutes.

These principles have to do with whether established mealtimes of under 30 minutes are bona fide, non-compensable ones.  Work-related interruptions of established meal periods are evaluated differently.

Finally, remember that state or local laws might require a meal period of at least 30 minutes or some other length and might impose other meal-related obligations.  The FLSA does not relieve an employer from its responsibilities under any such laws.

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An increasing number of federal Fair Labor Standards Act lawsuits and U.S. Labor Department investigations include claims based upon the employer's automatically deducting meal periods from non-exempt employees' recorded worktimes.  Typically, the employees did not clock out-and-in to reflect the mealtime they took.  Instead, the employers systematically subtracted the full, scheduled meal period from each employee's total daily hours on the assumption that the person took an entire, uninterrupted meal break each workday.  An employee who worked during a meal period could avoid the deduction by using an exception feature of the timekeeping system, but the usual allegation is that employees did so inconsistently or infrequently, if ever.

Generally speaking, the FLSA does not require that employees be compensated for duty-free meal periods.  However, to the extent that automatic time deductions deprive an employee of FLSA-required wages for work during a meal period, a violation often occurs.  For instance, this frequently happens when the "standard" deduction is made for a day when the employee takes no meal break or takes only a shortened one, or where the meal period is shot-through with work-related interruptions.

A timekeeping-by-exception approach to meal periods is not unlawful under the FLSA if it results in an accurate record of non-exempt employees' hours worked.  See, e.g., Opinion Letter of Office of Enforcement Policy FLSA2007-1NA (May 14, 2007).  However, experience suggests that this is not what occurs in the real world.  An unusual set of circumstances might permit such a claim to be defended successfully, but even then the "win" is likely to be so expensive and disruptive that it will not feel much like a victory.

A safer approach is to instruct employees clearly that:

•   They are to clock out-and-in for the time taken for a meal period;

•   They are not to work during mealtime unless it is unavoidable; but

•   They will be compensated for and must therefore accurately record any time so worked.

Of course, even if employees are told these things, in the end what matters is what actually happens.  For example, there might be situations in which work-related interruptions of a meal period should lead to considering the entire period to be compensable worktime.

Meal periods might also be regulated by the laws of other jurisdictions.  In addition to considering FLSA issues, it is also important to know whether and how those laws might affect timekeeping and pay where meals are concerned.

UPDATE 08/10/10:  As recent news reports demonstrate, this is an increasingly frequent subject of claims made in disputes with health-care institutions.

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