Employees at a Chicago plant are picketing over a new employer policy to time unscheduled bathroom breaks and discipline employees who exceed what the company deems as a reasonable amount of time.   The company even went so far as to install swipe card systems on the bathroom so that it can track the entry and exit times for all employees.  An article providing details of the company policy can be found here.

This case raises the question as to how far an employer can go in punishing employees who would prefer to be in the bathroom than at their work station, and the legal risks associated with such a policy.  In this case, the employees chose to exercise their rights to collectively complain about the policy through a union, and this case serves as a good example of how policies which look like they will save money on paper may result in far more expense in the long run.  Also, some employers have asked why not just dock the employees’ pay for bathroom breaks?  The answer is that federal law (and some states) prohibit deductions for break periods less than 20 minutes where the employee is not completely relieved of work duties (i.e. can leave the facility and use the free time as desired).   Short bathroom breaks therefore must be paid.

Another legal pitfall in disciplining employees for excessive bathroom breaks is the risk for discrimination claims.   It is not hard to imagine that a pregnant employee or one with a bowel disorder might reasonably require an accommodation in this area.  Treating everyone the same might seem like a good idea, but there will likely be the legal need to make exceptions in some cases.

The takeaway from this post is that employee bathroom time can be a risky area to regulate.    A better approach is to discipline based on productivity (or lack thereof) as employees who are in the bathroom likely won’t be meeting measurable work requirements.