COFFEE BREAK: Third Circuit Reminds Employers That Short Breaks May Be Compensable Under FLSA

3 minute read | October.27.2017

Most employers in California are all-too familiar with the Golden State’s unique meal and rest break requirements.  But outside of states like California, Oregon, and Washington, which have clear requirements for meal and rest breaks, employers may forget that the Fair Labor Standards Act has its own rest break obligations.
As the DOL explains on its website, although federal law does not mandate meal or rest breaks, when employers do offer short breaks (usually lasting 5 to 20 minutes), federal law treats those breaks as compensable time. A recent decision from the United States Court of Appeals for the Third Circuit is a helpful reminder of what the obligation under the FLSA entails – and what time is compensable and what time is not.

On October 13, 2017 a three-judge panel at the Third Circuit held that employers are required under the FLSA to pay workers for short breaks up to 20 minutes and that a company’s policy of not paying workers who logged off of their computers for more than 90 seconds violated the FLSA.

The case involved Progressive Business Publications’ sales representatives who were paid an hourly wage and received bonuses based on the number of sales they made each hour.  In 2009, the company revised its policy from providing two 15-minute breaks per day to getting rid of paid breaks entirely and replacing them with a “flex time” policy that allowed employees to log off their computers at any time – but only paying them for the time they were actually logged in.

Progressive argued that courts should look at whether a particular break is intended to benefit the employer or the employee and require employers only to pay for breaks that benefitted the employer, rather than adopting a bright-line rule.  The court rejected this argument, noting that it would be “burdensome and unworkable.”

The court went on to note that it was contrary to the policy goals of the FLSA to force employees to choose between the necessities of 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 90 seconds.”

(In an amusing footnote, the court considered how an employee might pull off such a quick bathroom break, including having a wizard’s “Portkey” from the “Harry Potter” series or simply being athletic enough to achieve this, in which case the court observed that it was “highly unlikely that the employee would be working at Progressive for a minimum wage rather than playing for a professional sports franchise or advertising a brand of athletic footwear.”)

The court concluded it was clear under the FLSA that by protecting employees from having their wages withheld when they take breaks of 20 minutes or less “to visit the bathroom, stretch their legs, get a cup of coffee, or simply clear their head after a difficult stretch of work, the regulation undoubtedly protects employee health and general well-being by not dissuading employees from taking such breaks when they are needed.”

The FLSA covers the vast majority of employers, which means that employers of all sizes and geographies should consider reaching out to counsel at Orrick for advice on navigating the FLSA as well as state and local laws and regulations (after grabbing a cup of coffee or some fresh air, of course).