As most HR professionals are aware, the Fair Labor Standards Act (FLSA) requires that non-exempt employee be paid for rest breaks of up to 20 minutes. Contrary to the common misperception that the Act requires employers to allow two paid breaks per shift, in most industries, it actually does not mandate any certain minimum or maximum number of paid breaks per shift.

Conversely, the Family and Medical Leave Act (FMLA) require employers to allow employees short breaks when certified as necessary by a health care provider. Unless the employer specifies otherwise, FMLA breaks are usually unpaid.

You see the inherent conflict set up between the FLSA (you must pay for short breaks) and the FMLA (FMLA leave is generally not compensable working time). For example, if an employer allows its employees to take three paid, fifteen minute beaks per day, can it not pay an employee for taking one, fifteen minute FMLA-qualified break per day without violating the FMLA or FLSA? Will this constitute retaliation or interference under the FMLA?

On April 12th, the US Department of Labor issued an opinion letter addressing these very issues. https://www.dol.gov/whd/opinion/FLSA/2018/2018_04_12_02_FLSA.pdf . The DOL decided that the breaks need not be paid, but with one caveat. The FMLA qualified breaks need not be compensable time, but only to the extent that they exceed the number of paid breaks allowed to other employees.

In the example above, if the FMLA qualified employee took a total of three, fifteen minute FMLA-protected breaks per day, and this was the same number of breaks taken by his co-workers, then the employer would be required under the FLSA to pay him for all three breaks. However, if the employee took four, FMLA-protected fifteen minute breaks per day, one more than his co-workers, the employer would only be required to pay him for three and the fourth would be unpaid.

Obviously, the most problematic issue in a case like this will be proof. Proving how many breaks that all of your employees are actually taking compared to how many FMLA qualified breaks a particular employee is taking will be almost impossible in most instances. (Keep in mind that you may be trying to prove this a couple of years after-the-fact.) Some work situations allow employers to accurately track breaks. However, most don’t. And, if an employee were to claim that you did not allow him to take as many paid breaks as hi co-workers, you can assume that he will have a shockingly vivid memory, and possible even notes, of every break that he and his co-workers have taken over the past years. He will probably have several former employees, all with equally vivid recollections, to support his claims. Convincing a judge or jury that the employees memories are incorrect and that they actually took more short breaks than their co-workers would be almost impossible in most situations.

So, although the letter of the law does not require you to pay employees for taking short FMLA qualified breaks in excess of the number allowed to all other employees, be very careful before you reduce an employee’s pay for these “extra” breaks. Defending a suit brought under the FLSA or FMLA will be far more expensive than paying for an extra fifteen minute break or two. If you choose to not pay for short FMLA breaks, be careful how you present this to the employees and be sure that you have a system in place that will allow you to accurately track all the short breaks taken by all employees.