Court Confirms Payment Required for Breaks Less Than 20 Minutes


An employer’s creative attempt to avoid payment for break time by recasting it as “flexible time“ was rejected by the U.S. Court of Appeals for the 3rd Circuit.

Although the Fair Labor Standards Act does not require employers to provide breaks, if breaks are provided, FLSA regulations require employers to compensate employees for breaks lasting 20 minutes or less. In Sec’y U.S. Dept. of Labor v. American Future Systems, Inc. dba Progressive Business Publications, the employer implemented a new “flexible time” policy under which employees could log off their computers at any time and for any length of time, but that the logged-off time would not be paid unless it lasted less than 90 seconds. The employer argued that the logged-off time was not “hours worked” under the FLSA and therefore need not be paid. The court, however, found the employer’s argument “cannot withstand scrutiny” and the “log off” times were clearly breaks under the FLSA.

The employer also argued that the court should analyze whether breaks are predominantly for the benefit of the employer or the employee, and those that benefit the employee need not be paid. The court also rejected this argument, affirming the clear FLSA rule that any breaks less than 20 minutes must be paid.

The lesson here for employers is quite simple – any and all non-working time lasting less than 20 minutes must be paid.