From time to time employers ask the question whether they have to pay employees for time that they’re not actually working while on the clock. In other words, if an employee stops working for five minutes or so, despite the fact that the employee has work to do, is that compensable? After all, the employer agrees to pay for a specific number of hours of work, and should expect that an employee provides that amount of work.
The 3rd Circuit Court of Appeals answered that question last Friday when it ruled that the Fair Labor Standards Act requires employers to pay for short breaks taken by employees. The three-judge panel unanimously upheld this interpretation of the FLSA, saying that it was longstanding, unchanged, and reasonable given its purpose.
This decision by the 3rd Circuit comes from the 2012 lawsuit between the Labor Department and Progressive Business Publications. In that case, the Labor Department alleged Progressive’s flexible time policy was in violation of the FLSA by not paying employees for all of the time they worked. The policy, which was enacted in 2009, stopped giving their sales representatives paid breaks and instead allowed them to log off and stop working for any reason throughout the work day. However, if this time ended up being over ninety seconds long, the sales representative would not be paid for the amount of time he or she was logged off.
In 2015, the U.S. District Court in Philadelphia ruled in favor of the Labor Department, yielding to the interpretation that breaks of 20 minutes or less are compensable under the FLSA. Progressive appealed this decision, arguing that the company does not have a break policy because the time an employee is logged off is not considered actual work.
The Third Circuit rejected Progressive’s argument on appeal, saying the company cannot dodge its legal obligations to pay for short breaks by using another name to classify a break policy. Specifically, Judge McKee wrote in the opinion, “[T]he policy that Progressive refers to as ‘flexible time’ 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.” In other words, if an employee cannot use the bathroom in less than ninety seconds, they will not be paid for that time. McKee opined that such a result from the policy was entirely contrary to the FLSA.
Although the FLSA does not require employers to have a break policy in place, Progressive, and any other company, cannot avoid paying employees for break time by disguising their policy as something else.