08 May FMLA-Protected Rest Breaks Not Compensable under FLSA
In an opinion letter issued April 12, 2018, the Department of Labor (“DOL”) determined that an employer is not required under the Fair Labor Standards Act (“FLSA”) to compensate an employee for time the employee spends taking 15-minute breaks once every hour during the work day, as certified by a healthcare provider to treat a serious health condition, and thus, covered under the Family Medical Leave Act (“FMLA”).
The DOL explained that although as a general matter, short rest breaks up to 20 minutes in length are compensable under the FLSA, Courts have held that employees are not entitled to take an unlimited number of personal rest breaks during the day and be compensated for all such breaks, as long as each such break is less than 20 minutes in duration. Indeed, the DOL notes, Courts have held that where the breaks predominately benefit the employee and not the employer, the breaks may be noncompensable.
Here, the DOL opines that because the FMLA-protected breaks are given to accommodate the employee’s serious health condition, the breaks predominantly benefit the employee and are noncompensable. Moreover, the DOL cites to the text of the FMLA which expressly provides that FMLA-protected leave may be unpaid. Therefore, the DOL determined that the employer is not required under the FLSA to compensate the employee for the time the employee spends taking FMLA-protected rest breaks.
The DOL did issue a note of caution that employees who take FMLA-protected breaks must still receive as many compensable rest breaks as their co-workers receive. For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks per shift, an employee needing FMLA-protected rest breaks should likewise receive compensation for two 15-minute rest breaks.