Bathroom (Unpaid) Break: FLSA Foul Up

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A dispute over unpaid bathroom break time at the office has resulted in an employer flushing away some $1.75 million as a result of violating the FLSA. The case arose when the Labor Department filed suit against a publisher after discovering that its employees were not earning the $7.25 hourly minimum wage during “personal breaks.” Pursuant to the employer’s policy, employees were required to clock out while using the bathroom, getting a drink or similar breaks.

The publisher argued that federal law did not require it to pay employees for short breaks because the employees were completely relieved from duty and could do what they wanted during break time.  The court disagreed, citing Labor Department regulations and pronouncements promoting the value of short breaks and the necessity that they be paid.  Now, the publisher faces an estimated $1.75 million to pay employees docked for bathroom and other short breaks.  The tab will include back pay and liquidated damages to 6,000 people who worked in 14 offices in Pennsylvania, New Jersey, and Ohio from July 2009 to July 2013.

This holding serves as an important reminder to employers seeking to boost productivity while still complying with the law.  FLSA, the federal wage and hour law, does not require companies to give workers short personal breaks lasting less than 20 minutes, and only a few states — California, Colorado, Kentucky, Minnesota, Nevada, Oregon, Vermont, and Washington — currently require employers to allow employees to take rest breaks.  However, if employers do offer those breaks, FLSA requires that they have to pay workers for them.  Specifically, FLSA prohibits pay deductions for break periods less than 20 minutes where the employee is not completely relieved of work duties (i.e. can leave the facility and use the free time as desired).  FLSA deems these breaks as compensable work hours that would be included in the sum of hours worked during the work week and taken into account when determining if overtime was worked.

This case demonstrates that employers need to make sure that any break policy does not run afoul of the FLSA and that if breaks appear to be excessive without some other legitimate justification (i.e. disability accommodation), disciplinary action against the employee may be the advisable course of action.