Employees Must be Paid for Breaks Shorter than 20 Minutes, Third Circuit Holds


Does your business have an employee break policy? Do you pay employees during their coffee, bathroom, and other short breaks? According to the Third Circuit Court of Appeals (which has jurisdiction over New Jersey), if those breaks last less than 20 minutes, employees must be paid for that time under the Fair Labor Standards Act (FLSA).

 On October 13, 2017, the Third Circuit issued its opinion in Secretary United States Department of Labor v. American Future Systems, Inc. d/b/a Progressive Business Publications (the "Progressive" case). In Progressive, the court decided whether Progressive's flexible break policy violated the FLSA. Progressive's policy permitted employees to take as many breaks during the day as they wanted to, as long as they completed their total scheduled work hours, but employees would not be paid for any breaks lasting longer than 90 seconds. According to Progressive, the policy was designed to give employees flexibility during the work day to handle personal matters, while at the same time completing their work duties.

The Department of Labor (DOL) filed suit against Progressive alleging that the flexible break violated the FLSA. The DOL relied upon its own regulations interpreting  the FLSA, which provide that breaks lasting from 5 to 20 minutes are compensable time, for which employees must be paid.

The Third Circuit deferred to the DOL's interpretation despite Progressive's argument that the DOL rule could be abused by employees who might take repeated breaks of less than 20 minutes throughout the day. The court rejected this argument noting that should such a situation arise, an employer's recourse would be to discipline or terminate the employee, not to withhold the employee's pay.

 The holding in Progressive establishes a clear rule that, under the FLSA, employers must pay employees for all breaks during the day that last less than 20 minutes. Employers should review and update their break policies to ensure compliance with the law. If you have any questions about your business' break policies, please contact us at (201) 345-5412 or info@morealaw.com.