Employer Must Pay For All Non-Exempt Employee Breaks of 20 Minutes or Less

Last week on October 13 the Third Circuit Court of Appeals held that an employer must pay a non-exempt employee for all rest breaks of 20 minutes or less. This is nothing new and has been the law of the land under the Fair Labor Standards Act (FLSA) for quite some time. The FSLA was established in 1938 and established certain minimum living standard for workers such as minimum wage, time and a half and child labor standards. What is new under this decision is that the Court decided this is a bright line test and the facts surrounding each break period need not be looked at on a case by case basis. In other words, if the employer did not pay an employee for a 20 minute employee break, the analysis is over and the employer has violated the FLSA.

Employee Breaks – FLSA as a Federal Floor and State Laws

Employers are governed by both federal (FLSA) and state employment laws. Understand that the FSLA is a minimum standard, a floor, if your will, and that if a particular state has more stringent employee protection requirements, that state’s law must be complied with as well. The Department of Labor has a list that identifies (current as of January 2017) what each state requires under their employment laws regarding paid employee breaks. Click here for that state by state list.

Interestingly Pennsylvania and New Jersey are not identified on this list. Therefore, the 20 minute rule governs. Non exempt employees must be paid for breaks that are 20 minutes or less. Both states however have different rules when employees are minors. Not surprisingly both New York and California have state laws that far exceed the FLSA floor.

Damages for Violations of the FLSA

When an employer violates the FLSA double damages are awarded. This means that the employee is entitled to not only the time he or she was not paid, but also an additional amount called “liquidated damages” in the amount of the unpaid wages. Thus, “Double Damages”. There are defenses to the award of liquidated damages but this is beyond the scope of this post.

What this means for Employers

Employers should every once in a while conduct a wage and hour audit. This means not only should an employer review its wage and hour policies, but also understand how it works in the actual workplace. Employees must be paid for all time worked. For example, are factory workers being paid for the time it takes to get dressed or shower off after shifts? While this might seem like small exposure, consider the impact if this was brought as a class action and covered all workers employed over the past several years? Also, by doing away with a cases by case analysis approach, the Third Circuit eliminated one of the best defenses available to employers, namely that a class action is not appropriate because each case needs to be examined based upon its own individual facts.

Douglas Leavitt is an attorney with Danziger Shapiro and focuses his practice on guiding businesses with their daily operational needs. Please feel free to contact him or any of the other attorneys at Danziger Shapiro to discuss a business compliance issue or other concerns you have that affects you and your business.

This entry is presented for informational purposes only and does not constitute legal advice.