It is a common practice for employers to provide their employees with rest breaks during the work day. (And in some states, like California, it is required by state law.) But under what circumstances is an employer required to pay its employees for break time?

In U.S. Department of Labor v. American Future Systems Inc. et al., the Third Circuit Court of Appeals was asked to decide whether the Fair Labor Standards Act requires employers to compensate employees for breaks of 20 minutes or less during which they are free from performing any work.

The employer in that case produced business publications that were sold over the telephone by sales representatives. The sales representatives could log off of their computers and take breaks whenever they chose and for any length of time. They were free to leave the premises. However, if the employees were logged off their computers for more than 90 seconds, they were not paid for the break time.

The Department of Labor (“DOL”) filed suit against the company. The DOL relied on 29 C.F.R. § 785.18, which states:

Rest.

Rest periods of short duration, running from 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…

The District Court for the Eastern District of Pennsylvania granted partial summary judgment to the DOL, concluding that section 785.18 created a “bright-line rule” and the company violated the FLSA by failing to pay its employees for rest breaks of twenty minutes or less. The company appealed to the Third Circuit.

The company argued that the DOL was attempting to enforce the wrong regulation, and instead the court should apply 29 C.F.R. § 785.16 to its break policy. That regulation states:

Off duty.

Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

The company contended that the “off duty” regulation should apply. The company pointed out that its policy was completely flexible, allowed employees to take as many breaks as they wanted for as long as they wanted, allowed them to be completely relieved of all duties and created no obligation to return to work. Therefore, the company argued that under the facts and circumstances of the case, even breaks of less than 20 minutes were not compensable.

The Third Circuit disagreed. It stated that the “off duty” regulation provides a general rule regarding the compensability of hours worked, but section 785.18 is a more specific regulation that carves out an exception to the general rule. The Third Circuit held that section 785.18 establishes a bright-line rule that employers must pay their employees for any rest breaks of 20 minutes or less.

To date, it does not appear that any other Circuit Court has weighed in on this issue. That another Circuit might reach a different conclusion is certainly possible. And it is also possible that the Supreme Court may have the final word on this issue.