DOL Gives Employers a Break on Paying for Some Intermittent Leave

You run a company that has 75 employees and one of your non-exempt employees has a recurring spinal condition. The employee presents a note from his doctor advising that the employee needs a fifteen minute rest break every hour during the employee’s 8 hour work shift. You already provide non-exempt employees two paid 15 minute work breaks during their 8 hour shift. The employee wants to get paid for the six remaining 15-minute breaks that his doctor is recommending. Does the employer have to pay for these six 15-minute breaks?

The U.S. Department of Labor (DOL) has reinstituted the practice of providing wage and hour opinions. In one of the first three opinions the DOL confronts the question  set out above. This question is important for employers because they are often faced with a request by employees for intermittent leave as an accommodation for a health related condition. In the example above and in the DOL opinion the intermittent leave sought by the employee would qualify for family and medical leave. It is relevant to note that family and medical leave is unpaid leave but the Department of Labor rests its decision about this scenario on a different principle.

The DOL notes that rest breaks up to 20 minutes in length are generally compensable because the breaks predominantly benefit the employer. These breaks are common in industry and promote the efficiency of employees and thus employers customarily pay the employees as if these breaks are working time.

However, in the case above, the DOL notes a significant difference. In this case, the DOL opines that the rest breaks benefit the employee and are permitted by the employer to accommodate the employees’ health condition. Consequently, the DOL concluded that such rest breaks are non-compensable. It should be pointed out that the DOL also opined that if the employer does routinely give two rest breaks during an 8 hour shift to all employees, then the employee in the example above would at least be entitled to two paid rest breaks while the remaining six rest breaks in the 8 hour period would not be compensable.

Employers are constantly confronted with the dilemma of how to plan out intermittent leave for employees. The case above goes one step further in addressing the conditions under which a non-exempt employee must be paid or is ineligible to be paid for such intermittent leave.  The answer meets the criteria of the Fair Labor Standards Act, the Family and Medical Leave Act, and the Americans with Disabilities Act.  It is significant to note that in reviving the practice of providing  DOL opinion letters, the DOL has chosen a common scenario that employers routinely face.

If you are an employer that needs assistance in determining whether time spent on the job site is compensable or other FLSA issues, the Employment Team at Sands Anderson are available to assist you.