The Department of Labor’s Wage and Hour Division (WHD) have been busy bees! The newest opinion letter, written by Acting Administrator Bryan L. Jarrett, provides insight into how to compensate employees who take numerous FMLA-protected breaks throughout the day (FLSA2018-19).
FLSA2018-19 was directed to an employer attempting to determine if a non-exempt employee, who must take extra 15-minute rest breaks as required by their health care provider and covered under FMLA, should be compensated for those breaks under FLSA.
Jarrett clarifies that the FLSA allows that employees who take breaks of up to 20 minutes that “primarily benefit the employer” should be compensated for this time. This is seen as time for employees to “recharge,” with the goal of more productivity later in the day. Conversely, rest breaks primarily benefiting the employee should not be compensated. The distinction is often used to compensate employees for mid-morning and mid-afternoon coffee breaks, while not compensating for lunch (or other) longer meal breaks. Jarrett states that breaks required for health are benefiting the employee more, and he notes that even the FMLA provides that breaks for health reasons do not require pay.
But beware: the letter points out that many employers provide paid breaks for employees throughout the day. In such cases, all employees should be paid the same for these routine breaks. For example, if all employees are allotted two 15-minute breaks per day, a person taking four 15-minute FMLA-protected breaks in a day should be compensated for the first two. Beyond that, an employer is not required to compensate an employee’s FMLA-protected breaks.
Bill Bowser will be addressing these and other important topics at this year’s Delaware SHRM State Conference on November 1 and 2 at Dover Downs Hotel and Conference Center in Dover, Delaware. See you there!