As mentioned previously here last summer, the U.S. Department of Labor’s Wage & Hour Division has brought back the Opinion Letter, the process previously used by attorneys and HR professionals to obtain guidance from the WHD. The DOL dropped the practice in 2010, but it has since been reinstated.

Yesterday, on April 12, 2018, the WHD issued multiple Opinion Letters, including one addressing compensability of breaks covered by the Family and Medical Leave Act (FMLA).  Specifically, the WHD was asked for an opinion regarding the following situation:

Whether a non-exempt employee’s 15-rest breaks, which are certified by a health care provider as required very hour due to the employee’s serious health condition and are thus covered under the FMLA, are compensable or non-compensable time under the FLSA [Fair Labor Standards Act].

The short answer to this question is that the breaks are “non-compensable.”  But keep in mind that this Opinion Letter is based on the facts of the situation addressed therein and is not binding precedent.  Nevertheless, the Opinion Letter provides guidance to employers as to how to handle similar situations.

Although compensability is generally considered a FLSA issue, the question addressed in the Opinion Letter crosses over into the territories of both the FLSA and FMLA.  The FMLA provides for unpaid leave.  However, the FLSA has its own rules regarding whether time is paid or not.  Generally speaking, rest breaks up to 20 minutes in length are considered primarily for the benefit of the employer, and time spent primarily for the benefit of the employer is considered compensable under the FLSA.  Nonetheless, there are circumstances where such a rest break is primarily for the benefit of the employee and therefore not compensable.

At least one federal court, Spiteri v. AT&T Holdings, Inc., has looked at this issue and held that an employee was not entitled to compensation for frequent “accommodation breaks” to relieve back pain because those breaks predominantly benefitted the employee. The Spiteri court also concluded that the FMLA does not entitle an employee to take unlimited personal rest breaks under 20 minutes and be compensated for all such breaks.

The Opinion Letter reviews the case law, as well as the FLSA and FMLA, in concluding the breaks in the letter are not compensable.  Ultimately, the WHD determined that the FMLA-protected breaks in the letter are being given to accommodate the employee’s serious health condition, are for the benefit of the employee, and thus are not compensable.   The WHD reasoned that the frequent FMLA-protected breaks identified in the letter more closely align with those in Spiteri rather than breaks commonly provided that predominantly benefit the employer.  The WHD also concluded that text of the FMLA itself confirmed that the breaks were to be unpaid and provides no exception for breaks of up to 20 minutes.  See 29 U.S.C. s 2612(c).

Insights for Employers

 The WHD’s Opinion Letter is not a drastic change in the status of the law, but simply provides more guidance for employers dealing with these types of breaks.  Employers should make sure to follow the requirements of both the FMLA and FLSA when dealing with accommodation breaks, and keeping track of these breaks for purposes of calculcating intermittent leave.

Employers should also remember that employees who take FMLA covered breaks must also receive the same number of paid breaks as their co-workers.  Therefore, if all employees get two 15-minute paid rest breaks per 8-hour shift, an employee needing 15-minute “accommodation breaks” every hour should get paid for two of those breaks.