Employees Entitled To Pay During Short Breaks Per Precedential Third Circuit Decision.
Saul Ewing Arnstein & Lehr LLP – Nicholas V. Fox
USA October 16 2017
In a recent and precedential decision by the Third Circuit, employers are obligated to pay their employees for breaks of 20 minutes or less under the Fair Labor Standards Act. In an opinion penned by Third Circuit Judge, Theodore McKee, the Court reviewed the granting of partial summary judgment in favor of the U.S. Department of Labor on claims that Progressive Business Publications failed to pay its employees a minimum wage.
Progressive, a business information publisher and distributor, employs sales representatives working in call centers, which are paid an hourly wage plus bonuses. Progressive had previously eliminated paid 15-minute breaks and replaced it with a program it called “flexible time” under which the employees could log off of their computer workstations during the workday at any time, for any reason, and for any duration. Under the new procedure, Progressive stopped paying the employees after they were logged off for more than 90 seconds. For example, when an employee used the restroom or went for coffee—they were required to log off of their workstation, which the company argued does not constitute “work” under the FLSA.
The Court stated that “[t]he policy that Progressive refers to as ‘flexible time’ forces employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than 90 seconds . . . .” “If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than 90 seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee’s computer. That result is absolutely contrary to the FLSA.”
In reaching this conclusion, the Court applied the DOL’s bright-line rule contained in regulation 29 C.F.R. § 785.18, which states that break periods of 20 minutes or less are compensable. Progressive argued that 29 C.F.R. § 785.16 (dealing with “off duty” time) applied to its policy as opposed to 29 C.F.R. § 785.18 (dealing with “rest”) because the “breaks” taken by its employees while logged off from their workstations are unrestricted periods that can be utilized by employees whenever and however they wish and solely for their own benefit. The Court rejected this contention, concluding that 29 C.F.R. § 785.18 is a separate, more specific regulation addressing the compensability of breaks 20 minutes or fewer. The Court concluded that breaks of 20 minutes or fewer are insufficient to allow for anything other than the kind of activity that benefits the employer.
The ramifications of this case are that employers must abide by 29 C.F.R. § 785.18 and compensate their employees for breaks of 20 minutes or fewer, and that employers cannot dodge this requirement simply by re-characterizing their break time policy.
The case is Sec’y United States Dep’t of Labor v. Am. Future Sys., Inc., 16-2685, 2017 WL 4558663, at *1 (3d Cir. Oct. 13, 2017).
6 ways employers sink their own ships
Constangy Brooks Smith & Prophete LLP – Robin Shea
USA October 20 2017
It’s not always the employee’s fault when things go bad for an employer. Sometimes the employer has no one to blame but itself. Here are six of the most common ways employers sink their own ships.
No. 1: Pointless workplace rules that just make employees mad. I can’t take credit
for this one — I got the idea from this article that recently appeared in Forbes. I don’t agree with the author 100 percent, but I adamantly agree with her on some of them, especially requiring an employee to bring a doctor’s note whenever he is out sick (not requesting leave under the Family and Medical Leave Act, not requesting a reasonable accommodation for a disability, but just “out sick”). Also, amen to No. 5 in the Forbes article.
No. 2: Failure to “meet employees where they are.” My ideal workplace would be a more diverse version of Mayberry, North Carolina, where everyone is quirky as heck, and Sheriff
Taylor knows it and makes allowances for them — even to the point of letting Barney Fife continue as a deputy as long as he keeps his one bullet in his pocket instead of in his gun, or letting Otis put himself in jail himself when he’s drunk. A real-world workplace can’t (and shouldn’t) be that flexible, but it’s good for employers to take employees’ individuality into account as much as they can. When a reasonable accommodation issue arguably arises under the Americans with Disabilities Act, or is needed because of the employee’s religious beliefs or practices, pregnancy, or lactation, of course the employer should try to make it. But I’d go beyond that and try to accommodate employees’ needs and personalities (within reasonable limits) even when it isn’t legally required.
No. 3: Terminating in the heat of passion. No matter what an employee has done, you can always suspend her for a couple of days while you regain your composure and,
perhaps, ask for a second or third opinion. Then you can objectively assess whether termination is the right thing to do under the circumstances, whether you’ve treated “similarly situated” employees the same way, whether to allow the employee to resign, whether to offer severance pay, and how to articulate the reason for the termination. I’ve never seen an employer go wrong by taking a few days to chill.
No. 4: Falling behind on essential training. You know, like workplace harassment, safety, all that important stuff. In the harassment context, the mere fact that you conducted training may give you a defense in a lawsuit. (It’s true!) In addition, training tends to flush out fresh complaints that you might not otherwise hear about. When you hear about it, you can put a stop to it, which is a good thing. And, of course, it serves as a valuable refresher for supervisors, who have to handle complaints properly, and for employees, who need to govern their own behavior and know what to do if they become victims. Plaintiffs’ lawyers love to ask supervisors (1) whether they ever had harassment/EEO training, (2) how long ago they had it, and (3) who conducted it. (If they’re really mean, they’ll also ask the supervisor to describe in his own words what he was taught.) Could your supervisor answer these questions? Don’t count on it.
No. 5: Doing nothing about the “boss from hell.” Like this guy (allegedly), not to mention his brother (allegedly). The folks who get away with this kind of behavior are often extremely talented, but those in authority need to keep them in line, as I noted last week.
No. 6: Messing with people’s pay. Most employer mistakes about pay are honest ones, but occasionally you come across a bad apple who is really trying to cheat employees out of
their rightful wages. Or the occasional employer who isn’t deliberately cheating employees but just doesn’t care enough to make sure they’re being paid properly. And there are so many ways to mess with an employee’s pay: requiring employees to work off the clock, misclassifying them as exempt when they clearly are not (which may deprive them of overtime pay), misclassifying them as “independent contractors” when they are clearly “employees” (which may deprive them of overtime, benefits, tax withholding, and the employer’s share of Social Security), or using “creative” ways to calculate overtime. Pro tip: It’s never a good idea to be “creative” where the Fair Labor Standards Act or state wage-hour laws are concerned.