HR 101: When Must You Pay Employees for Rest Breaks?

By Eric B. Meyer

This Tuesday blog post is brought to you by the number 20. As in, when your non-exempt employees go on break for 20 minutes or less, you need to pay them for that time.

The regulations to the Fair Labor Standards Act say that “rest periods of short duration, running from five (5) minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.”

And right before the end of 2015, Judge L. Felipe Restrepo, a recently-confirmed judge on the Philadelphia-based Third U.S. Circuit Court of Appeals, concluded (in Perez v. American Future Systems Inc.) that the FLSA regulation about short rest breaks being compensable time is a “bright-line rule.”

OK, there are a few exceptions.

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But don’t feel too bad about having this brightish-line rule being applied to this particular employer. You see, this company supposedly docked non-exempt employees for the time they spent on bathroom breaks.

How to curtail employee abuse of break time

You wouldn’t do that, would you? (Or this?) But, unauthorized extensions of authorized employer breaks are not counted as hours worked for an employee when the company clearly communicates to employees that:

  • The authorized break may only last for a specific length of time;
  • Any extension of such break is contrary to the employer’s rules; and,
  • Any extension of such a break will be punished.

Don’t just take my word on it. This is straight from the U.S. Department of Labor’s Field Investigator’s Handbook. And, of course, if the breaks are unauthorized, you can discipline for that too. I suggest thumb screws counseling.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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