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Third Circuit Confirms Employees Entitled to Pay During Short Breaks at Work

As published in the December, 2017 Issue of the PELRAS Newsletter


Published on: Wed 6th Dec, 2017 By: Brad Betack


In a recent case the Third Circuit affirmed the Department of Labor’s long held interpretation of the Fair Labor Standards Act (“FLSA”) that employers are required to compensate employees for breaks of 20 minutes or less, even if they are performing no work for the employer. 

In Secretary, U.S. Dep’t of Labor v. American Future Systems, Inc., the Plaintiff (Progressive) is a publisher of business publications.  Progressive employed sales representatives, who are paid an hourly wage and receive bonuses based on the number of sales generated per hour while logged onto the company’s computer system.  Progressive instituted a “flex time” policy, which allowed the sales representatives to log off of the computer system at any time, for any reason.  However, employees would only be paid for time in which they were logged off their computers for 90 seconds or less.  All other time logged off from their computers was unpaid.  Progressive labeled the policy a “flex” policy as opposed to a “break policy”, because employees were permitted to log off of their computers at any time, for any reason, and for any length of time and could leave the office when logged off.

The Department of Labor filed suit against Progressive, on the grounds that the policy violated 29 C.F.R. § 785.18, stating that rest periods of short durations, between “5 minutes to 20 minutes…are customarily paid for as working time” and must be counted as hours worked.  In support of its argument, the Department of Labor argued that breaks of 20 minutes or less are insufficient to allow for anything other than the kind of activity that benefits the employer, and is thus compensable as hours worked.

The Third Circuit ultimately agreed with the Department of Labor.  The Third Circuit found that Progressive’s policy “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.  If the employee can somehow manage to do that, he or she will be paid for the intervening period.  If the employees requires more than ninety seconds to get to the bathroom and back, the employee will not be paid for the period.”  The Third Circuit found such a result to be “absolutely” contrary to the FLSA, as by its very purpose, it is a “humanitarian” piece of legislation. 

Further, the Third Circuit rejected Progressive’s “superficial position” that merely because the policy was titled a “flex period”, it is relieved of adherence to the break time requirements of the FLSA.  Specifically, the Court stated that the FLSA’s protections cannot be negated by an employer’s characterization that deprives employees of rights afforded under the FLSA.

While the FLSA does not require employers to provide breaks to employees, if breaks are provided, such breaks must be paid if they last less than 20 minutes in duration.  Further, employers cannot sidestep the FLSA by characterizing paid break time as unpaid “flex time.”