On October 13th, the 3rd Circuit Federal Court of Appeals upheld a lower federal court decision that required an employer pay employees for short breaks. The FLSA has long mandated breaks less than 20 minutes be paid, however this employer made a rather unique argument that may just be worth a closer look.
Progressive Business Publications (Progressive) employed hourly telephone sales personnel. Prior to 2009, PBP provided employees with two paid 15 minute breaks per day. In 2009, Progressive began a new program called “flexible break policy” or “flex time,” in which employees were free “to take breaks from work at any time, for any reason, and for any duration.” Unfortunately for Progressive employees, the new “flex time” beaks were no longer considered compensable work hours. Even more unfortunate for Progressive, the Department of Labor (DOL) took issue with the new policy and filed suit alleging violations of the Fair Labor Standards Act (FLSA).
Sales personnel at Progressive were required to be logged into the internal computer system while working. If an employee logged off for more than 90 seconds, the time was not counted as hours worked and the employee’s pay was docked. Pay was docked for the time an employee used the bathroom, got a cup of coffee, or even took a very short break “after a particularly difficult sales call to get ready for the next call.” This practice resulted in employees only being paid an average of 5 hours per work day.
The FLSA does not require employers to give employees breaks, however when given, the FLSA requires most breaks from 5 to 20 minutes be paid. These requirements can be found in the regulations at 29 CFR §785.18:
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Progressive argued time spent under the “flexible break policy” was different than the typical break time afforded to most workers since the employee was free to do whatever they chose during the time. The court failed to follow PBP’s logic and wrote the following:
Although Progressive’s position may have some superficial appeal, it cannot withstand scrutiny. According to Progressive, if an employer has a policy allowing employees to log off and leave their work stations at any time, for any reason, it does not have to compensate employees if they take a break. Progressive does not deny that it permits employees to log off; it just refuses to call those time periods “breaks.” This misses the point of the FLSA’s regulatory scheme. Its protections cannot be negated by employers’ characterizations that deprive employees of rights they are entitled to under the FLSA. The “log off” times are clearly “breaks” to which the FLSA applies.
The policy that Progressive refers to as “flexible time” 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 employee requires more than ninety seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee’s computer. That result is absolutely contrary to the FLSA. The FLSA is a “humanitarian and remedial legislation” and “has been liberally interpreted.”
Although employers need not have any break policy, we refuse to hold that the FLSA allows employers to circumvent its remedial mandates by disguising a break policy as “flexible time,” as Progressive is seeking to do here. Accordingly, we find that Progressive does have a break policy, and thus, the FLSA applies. We therefore must determine if this break policy is contrary to the FLSA.
In the end, while the arguments presented by Progressive were unusual, they were found to be in violation of the FLSA. This is one of many topics discussed at all our upcoming Fair Labor Standards Act (FLSA) for Fire Departments seminars. Please consider joining us.
Here is a copy of the decision