DOL Clarifies Compensability of Short FMLA Breaks Under the FLSA

By Rex P. Fennessey - McMahon Berger, PC

June 5, 2018

It has long been the rule that, under the Fair Labor Standards Act (FLSA), non-exempt employees must be paid for breaks of 20 minutes or less because such breaks refresh employees and improve productivity and, therefore, primarily benefit the employer rather than the employee.  However, leave taken under the Family and Medical Leave Act (FMLA) is unpaid (unless the employee is also utilizing company-provided paid leave).  So what is an employer to do where an employee’s FMLA-qualifying serious health condition requires short, periodic breaks of less than 20 minutes?  The United States Department of Labor Wage and Hour Division (DOL) has issued an opinion letter – FLSA2018-19 – suggesting that these types of FMLA-required breaks need not be paid.  But, as with all things FMLA, the devil is in the details.

In its opinion letter, the DOL addressed the following situation: several non-exempt employees provided FMLA certifications stating that they required 15-minute breaks every hour due to their continuing serious health conditions.  Thus, in an 8 hour shift, the employees only perform 6 hours of actual work.  The DOL acknowledged the apparent conflict between the FLSA and the FMLA on the question of whether those breaks had to be paid.  However, it concluded that these FMLA-mandated breaks need not be paid because they “are given to accommodate the employee’s serious health condition” and, therefore, “predominantly benefit the employee” rather than the employer.  Simple enough to understand and apply.

But the opinion letter concluded with a caveat that employers should carefully consider.  The letter stated that “employees who take FMLA-protected breaks must receive as many compensable breaks as their coworkers receive.”  The example given by the DOL was an employer who gives all employees two paid 15 minute rest breaks during an 8 hour shift.  In that scenario, the DOL stated that, like all other employees, the employees taking FMLA breaks would have to be paid for those two breaks.

The situation the DOL did not address is when an employer has no established break policy.  If the employer provides no paid breaks, the answer is straightforward: none of the FMLA-required breaks would be compensable.  But most employers have a practice of allowing employees brief breaks when the press of business allows.  Consider the employee who smokes or loiters at the water cooler.  Employers rarely, if ever, track those breaks and – per the FLSA – do not require employees to clock-out for them.  What is an employer to do if they do not know or cannot prove how many paid breaks employees actually take?  What if some employees take more breaks than others?  What if business allows for multiple breaks on some days, but few or none on others? Unfortunately, the DOL’s opinion letter does not address these thorny scenarios.

On the whole, the DOL’s opinion letter is a welcome clarification of a seeming inconsistency, and can be an arrow in the quiver of employers seeking to control the growing use of intermittent FMLA leave.  But employers should think carefully before deeming all short FMLA breaks non-compensable.  Under the FMLA, even clarification can be confusing.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.