Thursday, April 19, 2018

DOL Says Short Breaks Taken Under FMLA Are Not Compensable

Throughout most of the Obama administration the Department of Labor stopped issuing Opinion Letters on day to day questions of employers and workers, replacing those letters with Administrative Interpretations which addressed broader legal issues. The DOL has returned to issuing Opinion Letters by addressing the real life question of whether a non-exempt employee’s hourly 15 minute breaks required due to a physician certified FMLA qualifying serious health condition must be paid or non-paid.

Although this issue may seem straight forward on its face, it poses an interesting question relating to the intersection of FMLA and FLSA. As employers are aware, an eligible employee is entitled to intermittent leave, so in the proper circumstances, it may be appropriate for an employee to take a 15 minute break in every hour of work, thus reducing their actual work time by two hours for every eight hour shift.

Additionally, the FLSA provides that short employee breaks of less than 20 minutes are generally compensable time. This leaves the question of whether the short breaks of an employee which are dictated by his or her need for a reduced schedule under the FMLA are also compensable under the FMLA.

In its recent Opinion Letter, the DOL noted that FLSA regulations and case law generally find that short rest breaks for employees “promote the efficiency of an employee” and therefore are compensable because that primarily benefits the employer. On the other hand, breaks provided pursuant to FMLA are for the primary benefit of the employee. Therefore, the DOL concluded in its Opinion Letter, and employee’s breaks pursuant to FMLA (as intermittent leave) are not compensable breaks under the FLSA, because they are provided for the primary benefit of the employee only.

Employers must always be aware of the chain reaction of rights and obligations when an employee exercises protections under FMLA, worker’s compensation or the ADA. For more information or to discuss your employer options and obligations, contact any of the attorneys in our Labor and Employment Group at Ancel Glink.