Break Policy that Had Workers Sprinting to Bathroom Struck Down

Court says magical transporter might have been needed to comply with policy

Allen Smith, J.D. By Allen Smith, J.D. November 21, 2017

Even in states that don't legislate meal and rest breaks, there are limits to the policies employers can implement, a 3rd U.S. Circuit Court of Appeals decision shows. A policy giving workers at Progressive Business Publications just 90 seconds to take rest breaks before the downtime became uncompensated violated the Fair Labor Standards Act (FLSA), the court decided (Department of Labor v. American Future Systems d/b/a Progressive Business Publications, 16-2685).

The court said an employee would need a Portkey—a magical object in the Harry Potter book series used to instantly transport wizards from one spot to another—or exceptional athletic ability to get from a workstation to a bathroom, relieve himself or herself, wash his or her hands, and return to the workstation in 90 seconds.

'Ridiculous' Policy

In a policy adopted in 2009, Progressive called the breaks "flexible time" and put no cap on the number of breaks employees could take. Previously, it had a policy permitting employees two 15-minute paid breaks per day.

Under its new policy, Progressive's sales representatives estimated the total number of hours they expected to work during the upcoming two-week pay period. They were subject to discipline, including termination, for failing to work the predicted number of hours. Progressive also sent representatives home for the day if their sales weren't high enough.
Representatives could decide when they would work between the hours of 8:30 a.m. and 5 p.m. from Monday to Friday, as long as they did not work overtime. During the workday, they could log off their computers at any time for any reason and for any length of time and could leave the office when they logged off. Progressive only paid the sales representatives for time away from their computers if they were logged off for less than 90 seconds. This included time to use the bathroom or to get coffee.

The Department of Labor's FLSA regulations require that any rest breaks lasting 20 minutes or less be compensable, noted Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J. The company's policy wasn't really flextime, she said, noting that flextime is when hours may be modified.

In this case, the company "got creative and cute with a policy change, then found themselves in trouble," said Peter Siegel, an attorney with Greenspoon Marder in Boca Raton, Fla. "The policy was ridiculous. It asked employees to make the choice between going to the bathroom in less than 90 seconds or not getting paid."

Child Advocates, however, filed a friend-of-the-court brief, maintaining that Progressive's policy allowed parents to address child-related needs and that it was essential for parents. Progressive made similar arguments. The court rejected them, however, saying that this example exaggerated the extent to which the policy benefited employees rather than the employer.

Rest Break Abusers Still Must Be Paid

Some of Siegel's clients expressed concern with the 3rd Circuit's decision, asking if it would mean that employees could take an endless number of breaks during the day of 19 minutes or less. Nothing in this decision and nothing in the law prohibits an employer from disciplining employees from violating a reasonable break policy, he remarked, describing Progressive's old policy of two 15-minute breaks a day as a good one.

If employees abuse break policies, employers have the right to discipline the workers, terminate them or, under the FLSA, discontinue the break policy, he noted. Employers also have the option to make changes to their break policies.

Siegel said that at some companies, employees have taken up to 13 cigarette breaks during the day—one or two breaks during the hour. "If employees are never at their desk doing work, employers will understandably become upset and want to withhold pay," he said.

But while the employees may be disciplined, they must be paid. As the 3rd Circuit said, "Where the employee is taking multiple, unscheduled 19-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."

Shorter Meal Breaks Have Become More Common

No rest breaks are required under federal law, although some state laws require rest and meal breaks.

"California is one state that is more aggressive in mandating meal and rest breaks," said Alfred Robinson Jr., an attorney with Ogletree Deakins in Washington, D.C.

Under federal law, if a meal break lasts 30 minutes or longer it may be uncompensated, if the employee does not have to work during that period, noted Andrew Rosenman, an attorney with Mayer Brown in Chicago.

Under federal law, whether 20 to 30 minutes is compensable is not really addressed, Kochman said. Most people need a little more time for lunch, she noted.

In the 1990s, 60-minute meal breaks were more common, Siegel said. Now "people like to do everything faster, including meals," he said. "People want to do their jobs and go home."

[SHRM members-only HR Q&A: Do we have to pay employees for breaks and meal periods? Do we have to provide additional breaks for smokers?]

Employees must be free of all work duties for a meal to be noncompensable, said Steven Suflas, an attorney with Ballard Spahr in Cherry Hill, N.J., and Denver. "If an hourly paid employee is having lunch at his or her desk but reading e-mails, reviewing documents or conducting research, the time is compensable."

He added that it is counterintuitive, but in the modern eat-at-your-desk atmosphere, hardworking employees who work through lunch must be disciplined if the employer follows an unpaid meal break policy.

However, many employers opt to provide a paid lunch break, Rosenman said.


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