If a break is 20 minutes or less in duration, it must be paid. Any longer, and an employer can make it an unpaid break.
What if, however, instead of providing employees paid breaks, an employer installs a system of flex time — the employer only pays employees for the time they are logged onto its system, which maximizes employees’ ability to take breaks from work at any time, for any reason, and for any duration.
Does this “flex time” system of unlimited unpaid breaks pass muster under the FLSA?
According to one federal court of appeals, in Acosta v. American Future Systems, d/b/a Progressive Business Publications (3d Cir. 10/13/17), the answer is “no.”
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.
What is an employer’s recourse, then, to control employee abuses of paid breaks? The court had an answer for that question as well—discipline or termination:
Progressive argues that if a bright-line rule is enforced, employees will be allowed to take any number of breaks during their workday, and as long as they are less than twenty minutes, employers will have to compensate them. We recognize this is a theoretical possibility. … However, it is not a realistic one. “[W]here the employee is taking multiple, unscheduled nineteen-minute breaks over and above his or her scheduled breaks for example, the employer’s recourse is to discipline or terminate the employee—not to withhold compensation.”
There is little doubt that the FLSA is a tangled mess of regulations with which even a well-intentioned employer has difficulty complying in totality. As this case illustrates, however, employers cannot game the FLSA on paid break time, as the law draws a bright-line rule on the issue.
Bravo to this employer for trying to find a creative solution to curb a problem of excessive smoke breaks, coffee breaks, and bathroom breaks. Its remedy, however, is not the installation of a system of unpaid break disguised as “flex time,” but instead the discipline or termination of those employees who are taking advantage of the FLSA’s generous allowance for paid break time.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email firstname.lastname@example.org. Follow Hyman’s blog at Workforce.com/PracticalEmployer.