For more information please call  800.727.2766


Employer Can’t Use Flex-Time Breaks to Skirt FLSA

The Fair Labor Standards Act (FLSA) requires employers to pay employees for breaks that are 20 minutes or less in length. 

Progressive Business Publications employed sales representatives at call centers to sell its print and online business information. These sales representatives were paid by the hour and entitled to bonuses. Since 2009, the company had eliminated scheduled breaks. Instead, the sales reps were entitled to take personal breaks at any time, for any reason, and for any length of time. However, they had to log off their computers while on these breaks and they would not be paid for the breaks unless they logged off for less than 90 seconds. This less than 90-second rule applied to restroom breaks, coffee breaks, and even getting ready for the next call. The employees were expected to log off unless they were in the middle of an active call or some other activity defined as work by the employer. 

The Third Circuit Court of Appeals held that this rule violated FLSA. FLSA protections could not be circumvented by the employer characterizing the breaks as “flex-time.” The log offs were breaks and FLSA clearly applied to breaks. Employees were not getting paid for bathroom breaks unless they could get there and back at a breakneck speed of fewer than 90 seconds. The court of appeals held that was “absolutely contrary to the FLSA.” This employer had a break policy and FLSA applied.