Q&A: Should breaks under 20 minutes be paid under the FLSA?
Do employers have to pay employees for breaks that are less than 20 minutes in duration under the Fair Labor Standards Act (FLSA) if there is no state law addressing the issue?
The federal FLSA does not require rest or meal periods, except for the PUMP for Nursing Mothers Act (“PUMP Act”), which requires employers to provide reasonable break time for a covered employee to express breast milk for her nursing child for at least 1 year after the child’s birth. However, the FLSA does set standards for when work breaks, including meal periods, rest periods, and sleeping time, must be counted as paid work time.
The FLSA does not require rest breaks but does require that any break of 20 minutes or less be paid. See 29 C.F.R. §785.18. The United States Department of Labor (DOL) has provided the following guidance in its Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA):
Rest and meal periods
Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if they are required to perform any duties, whether active or inactive, while eating.”
Accordingly, an employer may not require employees to punch out/take breaks of 20 minutes or less unpaid. An exception to this is that an employer does not have to pay its employees if they extend a short rest break without authorization—for example, stretching a smoke break from the allotted 5 minutes to 10 minutes—as long as the employer has “expressly and unambiguously communicated” the following:
- The authorized break may only last for a specific length of time;
- Any extension of an authorized break is contrary to the employer’s rules; and
- Employees who extend an authorized break will be punished.
Thus, an employer may limit the amount of time that an employee takes for a needed break, such as a bathroom break.
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