Last June, the U.S. Department of Labor announced that it would again issue opinion letters to assist employers and employees in interpreting laws like the FMLA and Fair Labor Standards Act.  It was a welcome change as far as the employer community was concerned.

Then we waited.

And waited.

Finally, the day came: April 12, 2018. We might as well have been the proverbial 6-year old kid on Christmas morning as we waited in anticipation.

The DOL’s coming-out party consisted of an answer to this burning question: Do employers have to pay employees when they take eight 15-minute FMLA breaks during a work shift?

You know, because every workplace in America is being ravaged by oodles of employee who need eight breaks a day, right?

If you asked Alanis Morrisette to describe the DOL’s first opinion letter in nearly a decade, it’s like finding ten thousand spoons when all you need is a knife. At a time when we need guidance on so many difficult FMLA issues, we didn’t need another spoon.

Employers Don’t Have to Pay an Employee Who Takes a Ton of Breaks

Enough of the Alanis Morisette imagery already. What’s the DOL’s answer to the question above?

Employee rest breaks (up to 20 minutes) generally must be paid because the DOL considers these breaks to exist primarily for the benefit of the employer. In Opinion Letter FLSA 2018-19, however, the DOL addresses a situation in which an employee needs to take a 15-minute break every hour in an 8-hour workday due to a serious health condition (supported by medical certification).

In its opinion, the DOL noted that an employee is not entitled to take an unlimited number of breaks throughout the workday and then expect to be compensated for them. In a situation where an employee requires eight 15-minute breaks per day as a result of the employee’s serious health condition, the DOL determined that the breaks were primarily for the benefit of the employee. Therefore, they are not compensable.

However, the employer still is on the hook for some of these breaks. The DOL reminded employers that these employees must be compensated for the same number of breaks taken by co-workers. For instance, if an employer typically allows two 15-minute paid breaks per day, the employee taking FMLA breaks every hour should be paid for two breaks.  The remaining six breaks, of course, would be unpaid.

For your employees who take eight potty breaks a day, there is your answer. A real yawner for employers everywhere.

But for DOL, it’s a start nevertheless.

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.


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