Docking pay for bathroom breaks exceeding 90 seconds 'absolutely contrary' to FLSA

Dive Brief:

Employers must pay workers for breaks lasting 20 minutes or less, the 3rd U.S. Circuit Court of Appeals has ruled (Secretary United States Department of Labor v. American Future Systems, Inc., No. 16-2685 (3rd Cir., Oct. 13, 2017)). The opinion came in a Fair Labor Standards Act (FLSA) suit filed by sales representatives at American Future Systems, doing business as Progressive Business Publications (PBP). The reps were paid only for time spent logged into their computers; any time away that lasted longer than 90 seconds became unpaid.
Federal regulations say that breaks of 20 minutes or less are compensable (see 29 CFR 785.18) but PBP argued that it didn't provide "breaks;" rather, it maintained an arrangement called "flex time" that allowed workers to go off the clock whenever they wanted, for any reason. The court, however, was not persuaded; that's an arrangement that "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." Docking the pay of employees who can't manage to do that is "absolutely contrary to the FLSA," the court said.
Ruling in the employees' favor, the 3rd Circuit upheld a lower court's summary judgment for them. That court had previously found the employer liable for least $1.75 million in back wages and damages, according to the U.S. Department of Labor (DOL). The ruling applies in Delaware, New Jersey, Pennsylvania and the Virgin Islands.

Dive Insight:

The employer in this case argued that the bright-line, 20-minute rule doesn't work in the real world. It could result in employees taking as many paid 19-minute breaks as they desire, for which the employer will be forced to pay them, PBP said.

The court acknowledged this possibility but said that, as with many FLSA issues, companies are free to set rules and enforce them. If an employee violates an employer's break policy and repeatedly takes 19-minute breaks, the employer’s recourse isn't to withhold pay; it's to discipline, up to and including termination, the court said. Experts often recommend the same course of action when an employee performs unauthorized overtime or works through what is supposed to be an unpaid lunch break. Pay, but discipline. And if the misconduct continues, terminate.

Also, while not discussed in the 3rd Circuit's opinion, employers should note that DOL requires that these paid breaks be counted as hours worked for overtime calculations. And, as is always the case, employers must know whether any state or local laws mandate employee breaks or include different compensation requirements.