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Must Employees be Paid During Smaller, Routine Work Breaks?


When employees aren’t working, they shouldn’t get paid. That statement makes a lot of sense to many business owners. However, an employer can have a different definition than federal laws have of when a worker is on the job and when he or she is not.

Why Employer May Dock Pay

Many business owners, in either an effort to cut expenses, or to encourage employees to work, institute policies where if employees are not working, they do not get paid (or, if there is a time sheet, the employee must “clock out”). If the employee takes a smoke break, a bathroom break, runs to his or her car, or just steps outside for a few minutes, some employers have taken to making those employees clock out, so that they aren’t paid during these periods.

FLSA Concerns

But those employers will run into a big problem: The Fair Labor Standards Act (FLSA). The FLSA is a comprehensive federal law that dictates, among other things, that employees must be paid minimum wage, and bonus time for any hours worked over 40 hours a week.

The FLSA does have exemptions and not all employees are subject to the law. But for those employees who do fall under the protections of the FLSA, employers should be wary before docking pay.

The problem is that the FLSA requires all workers to be paid minimum wage. But the FLSA also considers any employee taking a temporary break of under 20 minutes, to still be “on the job,” at work, and thus, the employee must be paid.

If the employee is not paid for, as an example, bathroom breaks that equal 10 minutes a day, at the end of the week, the employer is not paying for that time, even though the FLSA considers the employee to have been working during that time. That means when the worker’s pay is divided by the number of hours the employee was on the job (according to the FLSA) there is a chance that the worker has been paid less than minimum wage.

Lunch Breaks and Control

Maybe you’re not concerned; the only time you don’t pay employees is when they take longer breaks, such as lunch breaks that are longer than 20 minutes. No problem legally making them clock out, right? Well, maybe. This largely depends on if the employee is truly free during his or her break.

The FLSA doesn’t care whether you label your employees on break or not. It cares about whether you are still exercising control over them. So if your employee is restricted where he or she can go, if you are calling/texting the employee during break, or making the employee monitor office p[hones during break, the break is not actually a break—the employee is working, and must be paid for that time.

Consult with our West Palm Beach employment law attorneys with questions, whether you are an employee or an employer. Let our lawyers at Pike & Lustig, LLP, help you. Call us at 561-291-8298 to get a consultation.


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