To Pay or Not to Pay? FMLA, FLSA and Rest Breaks



The Fair Labor Standards Act (FLSA) requires that an hourly or non-exempt employee be paid for rest breaks of up to 20 minutes in length. Why, if the employee performs no work? The rationale is that the break is primarily for the benefit of the employer, promoting the "efficiency of the employee" and giving the company a "reenergized employee." But, is there a limit to the number of breaks per day that must be compensated as time worked?

On April 12th, the US Department of Labor (DOL) issued an opinion letter addressing, "whether a non-exempt employee's 15-minute rest breaks, which are certified by a health care provider as required every hour due to the employee's serious health condition and are thus covered under the FMLA [Family and Medical Leave Act], are compensable or non-compensable time under the FLSA."

The DOL Said ?! "No." The breaks need not be paid to the extent they exceed the number of compensable rest breaks the employee's coworkers receive. For example, if an employer generally allows all of its employees to take two, paid 15-minute rest breaks during an 8-hour shift, an employee needing eight, 15-minute rest breaks in an 8-hour shift (one every hour) due to an FMLA-covered, serious health condition should also receive compensation for two 15-minute rest breaks during his or her 8-hour shift. Thus, the remaining six breaks would be unpaid.


Originally posted on Five L Net blog.



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