by Joe Miller and Amanda McDonough (Summer 2018)

In an April 12, 2018 opinion letter, the United States Department of Labor (DOL) Wage and Hour Division clarified when a non-exempt employee’s 15-minute rest breaks taken throughout the work day due to the employee’s serious health condition under the Family and Medical Leave Act (FMLA) are compensable time under the Fair Labor Standards Act (FLSA).

In general, an employee is classified as non-exempt when the employee makes at least the minimum wage and is entitled to overtime pay for working over 40 hours in a work week. In the letter, DOL Wage and Hour Division Acting Administrator Bryan Jarrett responded to an employer’s inquiry regarding a non-exempt employee. The employee provided the employer with a FMLA certification from a health care provider stating that the employee requires a 15-minute break every hour due to a serious health condition. Because FMLA leave may be taken in periods of weeks, days, hours or even less than an hour, an eligible employee may utilize FMLA leave in 15-minute increments. An employee accessing a 15-minute break each hour would work only six hours in an eight-hour shift.

The United States Supreme Court’s decision in Armour & Co. v. Wantock, 323 U.S. 126, 133 (1994), determined that the compensability of an employee’s time depends on “whether it is predominantly for the employer’s benefit or for the employee’s.” Typically, rest breaks up to 20 minutes in length, when provided, are compensable. (29 C.F.R. § 785.18). While different terms may be negotiated in a collective bargaining agreement, it is common for an employer to allow its employees to take two 15-minute rest breaks during an eight-hour shift. Because such rest breaks are “deemed to predominantly benefit the employer by giving the company a reenergized employee”, Naylor v. Securiguard, Inc., 801 F.3d 501, 505 (5th Cir. 2015), they are customarily compensable.

In the DOL Opinion Letter, Jarrett noted that the FMLA-protected breaks are given to accommodate the employee’s serious health condition and predominantly benefit the employee. Since such accommodation breaks benefit the employee rather than the employer, they are not compensable. “The text of the FMLA itself further confirms that employees are not entitled to compensation for FMLA-protected breaks . . . [it] expressly provides that FMLA-protected leave may be unpaid.” The employee could substitute any other available leave, such as sick leave, during the accommodation breaks in the same manner that the employee could substitute such paid leave for larger periods of FMLA leave.

The DOL Opinion Letter concluded by noting that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. 29 C.F.R. § 825.220(c). Therefore, if all other non-exempt employees receive two paid 15-minute rest breaks during an eight-hour shift, the employee needing hourly 15-minute rest breaks should also be paid for two of the 15-minute breaks taken during their work day; their additional breaks throughout the day would not be compensable under the FLSA.