Our earlier post about the U.S. Labor Department's position on unauthorized extensions of rest breaks has generated additional comments and questions.   We have responded to one comment at length beneath the post itself.

Another reader took the Labor Department's interpretation to mean that, if an employee impermissibly extends his or her rest break, then the whole rest break could be treated as non-compensable time under the federal Fair Labor Standards Act.  In that reader's view, for example, if an employee stretches a ten-minute rest break to 20 minutes, then the full 20-minute period could be excluded from worktime, rather than only the additional ten minutes.

The Labor Department has said that this is not the case.  In Opinion Letter of Wage-Hour Acting Administrator FLSA2001-16 (May 19, 2001), an employer asked the U.S. Wage and Hour Division whether an employee's unauthorized extension of a rest break under the conditions in Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000), allowed the exclusion of the entire rest break from compensable time.  According to the Acting Administrator, "[o]nly the length of the unauthorized extension of an authorized break will not be considered hours worked when the three conditions are met, not the entire break."  In our illustration, then, the Labor Department would say that only the additional ten minutes could be treated as non-compensable time.

It also appears that some readers were not distinguishing among different kinds of breaks.  For purposes of what is and is not FLSA worktime under Labor Department interpretations, it can be useful to view scheduled breaks as falling into essentially three categories:

◊   Bona fide meal breaks, which are typically noncompensable time (29 C.F.R. § 785.19);

◊   "Short" rest breaks of "about 20 minutes" or less, which the Labor Department says are typically compensable time (29 C.F.R. § 785.18); and

◊   Break periods which are neither meal breaks nor "short" rest breaks, which might or might not be compensable time  (Section 31a01(b), Field Operations Handbook (U.S. Labor Department, December 15, 2000), link to reproduction below).

Employers should evaluate these categories differently in deciding whether and to what extent to treat them as being compensable hours worked under the FLSA.

And once again, employers must also be aware of and comply with whatever are the applicable break obligations of a state or another jurisdiction.

FOH 31a01b 12 15 00.pdf (34.71 kb)

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Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday.  It treats these breaks as paid worktime.  Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break.  Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect.  Could Acme start considering the over-10-minute extensions to be unpaid time?

The U.S. Labor Department has said that this is permitted under the federal Fair Labor Standards Act, if an employer makes its intentions clear in advance.

The FLSA does not require employers to give rest breaks (which should be distinguished from lactation breaks, which are required).  Many employers do give rest breaks, of course, and the Labor Department's position is that short periods like this (typically running from five to about 20 minutes) count as worktime for employees who are subject to the FLSA's minimum-wage and/or overtime requirements.  In the Labor Department's view, such breaks mainly have the effect of promoting employee efficiency, so they cannot be deducted from or offset against other compensable time.

Consequently, many employers assume that, when an employee stretches a ten-minute break to 20 minutes, the FLSA does not allow the additional ten minutes to be treated as non-compensable time.  On the contrary, the Labor Department's internal enforcement manual takes the position that unauthorized break extensions need not be considered worktime, so long as the employer has expressly and unambiguously told employees that:

◊   Authorized breaks may last only for a specific length of time;

◊   Any extension of those breaks is against the rules; and

◊   Any extension of those breaks will be punished.

Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000)(link to reproduction below).

Any employer looking to rely upon this position in the future would be well-advised to adopt a written break policy that includes these points and makes clear that unauthorized extensions will not be counted as worktime.  It should also be able to show that employees are aware of the policy.

Remember that many states impose rest-break rules of their own.  Employers must also be aware of and comply with whatever the applicable obligations are.  A state need not follow FLSA interpretations with respect to breaks, including as to whether unauthorized extensions of breaks are or are not to be counted as worktime under the state's own break requirements or under its other laws relating to hours worked.

 FOH 31a01 12 15 00.pdf (27.36 kb)

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The period has now closed for submitting information and comments relating to the U.S. Labor Department's "preliminary interpretations" of the 2010 federal Fair Labor Standards Act lactation-break amendment.  We highlighted these preliminary interpretations in a December post.  If DOL adopts even a portion of the positions put forth by many commenters, employers will be faced with yet another legal minefield.

Does The FLSA Sometimes Require Paid Lactation Breaks?

Several commenters continue to suggest or insinuate that lactation breaks of 20 minutes' duration or less must be treated as worktime under the FLSA.  Their positions overgeneralize an already loosely-worded DOL interpretation from 1940 that "[r]est periods of short duration, running from 5 minutes to about 20 minutes," must be counted as worktime.  See 29 C.F.R. § 785.18.  The rationale for this view was that such breaks "promote the efficiency of the employee" so as to inure mainly to the employer's benefit.  Lactation breaks serve laudable purposes for many reasons, but they are not "rest breaks" and are in no meaningful sense principally for the employer's benefit.

More importantly, any attempt to graft the rest-break interpretation onto the lactation-break amendment runs afoul of the plain words of the amendment:  "An employer shall not be required to compensate an employee receiving reasonable break time .  .  . for any work time spent for such purpose."  Policy preferences cannot override the words of the statute itself.

Some comments suggest that the time an employee spends retrieving pumping supplies and in other, unspecified "travel time" should not be considered a part of the break itself.  There is no basis for such a carve-out, especially in light of the amendment's use of the phrase "any work time".

Many push for a DOL statement that lactating employees using paid break time for that purpose must be paid in the same way that other employees are for the break time.  They further advocate statements that employers ought to allow an employee to use paid break time to express breastmilk but could not "force" her to do so.  Most seem to concede implicitly that the FLSA amendment itself has nothing to do with such things, because for support they refer to federal and state discrimination laws and to laws in some states dealing with lactation breaks.  It might well be that employers should maintain the proposed policies for a variety of legal and non-legal reasons, but there is no basis for any DOL pronouncements predicated upon laws it does not enforce and as to which it has no particular expertise.

Submissions Contain An "Interpretation" Wish-List

Various commenters also pressed for other provisions too numerous to summarize here.  Among the additional proposed pronouncements are that:

♦   Employers "should" permit lactating employees to extend workdays or to modify meal periods in order to avoid losing compensable worktime, but employers could not require them to do so.

♦   Employers and their customers or clients at whose premises lactating employees work can be "joint employers" with equal responsibility and liability under the lactation-break amendment.

♦   Adoptive mothers, or mothers who used surrogates, who choose to breastfeed with the assistance of lactation drugs are covered by the requirement.

♦   Employers would be required to provide a specific notice of amendment-related rights above and beyond any statement of rights included in a DOL poster.

♦   Employers must deal on an individualized basis with how often a particular employee "has need" to express breastmilk but would not be permitted to require an employee to provide any related justification or documentation for what she says.

Even if DOL issues no further interpretative material incorporating these or other provisions urged, employers should expect many of the commenters' views to be incorporated into DOL's enforcement posture and to show up in lawsuits by individual employees.

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The U.S. Labor Department has now published what it calls its "preliminary interpretations" and a request for information regarding the federal Fair Labor Standards Act lactation-break amendment we wrote about in April and July.  The deadline for submitting information and comments is February 22, 2011.  Employers should give serious consideration to weighing-in on these "preliminary interpretations".

The material says that the "reasonable break time" required should be evaluated according to individualized considerations of both the time spent expressing milk and "steps reasonably necessary" to that activity.  In DOL's view, the length of a required break will depend upon a variety of things, like:

•   How much time it takes to express the milk (DOL anticipates 15 to 20 minutes),

•   Time spent walking to and from the break location, and any time waiting to use the space,

•   Time spent retrieving, unpacking, and setting-up a pump and related supplies,

•   The efficiency of the pump,

•   Time spent in washing, in cleaning the pump and attachments, and in any related steps, taking into account whether there is a sink with running water nearby, and

•   Time spent storing the milk in a safe manner.

As for the frequency and number of breaks, DOL will consider factors such as:

•   The baby's age as this relates to the child's feeding needs,

•   The number of feedings in the baby's normal daily schedule,

•   Whether the baby is eating solid food, and

•   How often the baby usually nurses.

DOL anticipates that the number of necessary breaks will "typically" be two or three during an eight-hour shift (and possibly more for longer shifts).  Apparently, then, DOL would not consider total breaktime of, say, 45 to 90 minutes each workday to be out of the ordinary.  DOL also says that these breaks might not track the employee's regular break times or meal periods.

According to DOL, employers are required to make a suitable room available for use "where practicable" (although this room need not necessarily be a permanent space dedicated to that purpose).  If it is not "practicable" to do so, the employer must "create a space with partitions or curtains" that is also otherwise appropriate under the amendment.  DOL says that employers are not complying with the break requirement if the space is so far from the employee that it is "impractical" for her to take the breaks, or if the number of employees needing to use the space means that this "prevents" an employee from taking breaks or "necessitates a prolonged waiting time".

DOL continues to "interpret" the amendment to mean that:

♦   An employer allowing paid breaks must compensate a nursing employee in the same way it does others if she uses such a break in order to express breastmilk; and

♦   The break must be treated as worktime if the employee is not "completely relieved from duty" (apparently ascribing this to a non-existent "general requirement" in the FLSA itself).

For a variety of reasons, both the correctness of these positions under the FLSA and DOL's authority to propound them are subject to serious question.  Nonetheless, DOL clearly intends to impose them.

These "preliminary interpretations" touch upon and seek input with respect to other subjects also, such as:

•   Whether and under what circumstances managers' offices, locker rooms, utility closets, storage spaces, or anterooms or lounges associated with bathrooms might be adequate break spaces,

•   What approaches there might be to situations in which employees (such as drivers) do not perform their jobs at a fixed place of work,

•   How to comply with the requirement when an employee works at a client's or customer's place of business,

•   How the employer is to be notified about the employee's intention to take lactation breaks (including whether a "simple conversation" should suffice), and

•   How the under-50-employee "undue hardship" exemption will apply (indications are that DOL intends to construe it very restrictively).

Although this latest release is couched as a request for public comment for DOL's use in "formulating further guidance", there is some hint that instead it might actually be DOL's last pronouncement on the subject for the foreseeable future.  Moreover, DOL states that it does not intend to issue regulations "[a]t this time" (it is not apparent by what authority DOL would do so in the absence of any empowering language in the amendment itself).  Even so, employers ought to study these materials carefully and should submit their reactions and any suggestions or objections.  For one thing, a muted response risks a later argument that the "regulated community" tacitly embraced DOL's views in their entirety.

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The U.S. Labor Department has released its general views about the meaning of the federal Fair Labor Standards Act's new lactation-break requirement that was the subject of our April 1, 2010 post.  You will recall that FLSA-covered employers must now grant breaktime to a worker for the purpose of expressing breastmilk for her nursing child.

Fact Sheet #73 specifically confirms some of our original analyses, including that:

•   This FLSA amendment took effect when the Patient Protection and Affordable Care Act was signed into law on March 23; and

•   The provision does not apply to employees who are completely exempt from the FLSA's overtime requirement.

DOL has not specified any minimum number of, frequency of, or duration for these breaks.  It says only that the amount of time must be "reasonable", and that the breaks must be permitted "as frequently as needed" by the employee.

Echoing the amendment, the Fact Sheet states that an employer must provide a place other than a bathroom (even a private one) as a location for the break.  The location need not be reserved exclusively for a nursing employee's use.  Furthermore, it may be a place that is temporarily created or converted for this purpose or that is made available when needed.  However, DOL emphasizes that the location must be:

•   Functional as a space for expressing breastmilk;

•   Shielded from view; and

•   Free from any intrusion by co-workers or the public.

DOL acknowledges the amendment's clear statement that employers are not obligated to treat these breaks as compensable worktime.  However, in a continuation of DOL's recent "interpretative" actions, the Fact Sheet declares that:

•   An employer allowing paid breaks must compensate a nursing employee in the same way it does others if she uses such a break in order to express breastmilk; and

•   The lactation break must be treated as time worked if the employee is not "completely relieved from duty" during the break.

Whether these two pronouncements are permissible or even entirely correct under the FLSA is subject to debate, as is the effect of DOL's having announced them in an informal "Fact Sheet".  Even so, legal uncertainty, the possible impact of laws other than the FLSA, human-resources considerations, and prudence suggest that employers would be wise to follow them pending further developments under the amendment.

The Fact Sheet also clarifies how the "fewer than 50 employees" threshold must be determined in the exception for small employers who are prepared to prove that complying with the requirement causes undue hardship.  DOL says that all employees who work for the covered employer must be counted – not just those who work at a particular worksite.  That is, employers whose total number of employees is 50 or more are precluded from even trying to invoke this exception.

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Our July 5 post prompted a question about whether an established meal period of less than 30 minutes must be considered worktime under the federal Fair Labor Standards Act.  The answer is, "Not necessarily".

U.S. Labor Department interpretations state that bona fide meal periods during which employees are completely relieved from duty in order to eat regular meals are not FLSA worktime.  See 29 C.F.R. § 785.19(a).  This provision also says that "ordinarily" 30 minutes or more is long enough for such a period.  This has led many people (sometimes including even U.S. Wage and Hour Division officials) to insist that, if an employer maintains a meal period of less than 30 minutes, the mealtime must be considered hours worked under the FLSA.

But the Labor Department's own interpretation recognizes that a shorter timeframe can be long enough "under special conditions."  Among the special conditions the Labor Department looks for are these:

•   Any work-related interruptions of the meal period are sporadic and minimal;

•   Employees have enough time to eat a regular meal under the circumstances;

•   The period is not just a break for snacks or coffee but instead allows the employee to eat a full meal, comes at a time when meals are normally consumed, and occurs with a frequency that is customary for regular meals;

•   The employer and employees have agreed that a period of less than 30 minutes is sufficient to eat a regular meal; and

•   Applicable state or local laws do not require a longer meal period than the one established.

Section 31b23, Field Operations Handbook (U.S. Labor Department, December 15, 2000).

The Labor Department reviews these factors on a case-by-case basis, taking into account the particular context involved.  U.S. Wage and Hour Investigators are instructed to give "special scrutiny" to meal periods of less than 20 minutes.

These principles have to do with whether established mealtimes of under 30 minutes are bona fide, non-compensable ones.  Work-related interruptions of established meal periods are evaluated differently.

Finally, remember that state or local laws might require a meal period of at least 30 minutes or some other length and might impose other meal-related obligations.  The FLSA does not relieve an employer from its responsibilities under any such laws.

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The federal Fair Labor Standards Act now requires covered employers to grant breaktime to a worker for the purpose of expressing breastmilk for a nursing child. The employer must also provide a suitable location for her to do so. This obligation is contained in the new FLSA Section 7(r) that was buried in a little-noticed part of the Patient Protection and Affordable Care Act. So far as we can tell, the provision took effect immediately when the law was signed on March 23, 2010.

Employers need not pay for the break.  No minimum break length is specified, but the break must be a "reasonable" one.  Employers are required to provide places for the breaks that are "shielded from view and free from intrusion from coworkers and the public."  The location cannot be a bathroom.

The employee must be permitted to take a break each time she needs to express milk. The break requirement extends for one year after the child is born.

An employer of fewer than 50 workers would be excepted from the requirement if allowing the breaks would cause "undue hardship". This condition is met only if the employer will face significant difficulty or expense in light of the employer's size, financial resources, nature, or business structure.  We anticipate that this high standard will likely be a hard one to meet as a practical matter.

We assume that Section 7(r) does not apply to employees who are completely excluded from the FLSA's overtime section. For example, this would be the case as to those who qualify for one or more of the executive, administrative, professional, or "outside salesman" exemptions.  However, employers should approach this on an exemption-by-exemption basis, because some FLSA exceptions are more-limited in scope.

It is not clear what might be the full range of potential liabilities for failing to comply with this provision.  Presumably, an employer could at least face U.S. Labor Department civil penalties of up to $1,100 for each willful or repeated violation, and the Labor Department could seek a court injunction requiring compliance. Substantial liability could also flow from an employer's having retaliated against a worker who asserts her right to this break.

A number of states already require these kinds of breaks. Section 7(r) does not override any such laws that extend greater employee protections than it does.

UPDATE:  Some have suggested that this amendment conflicts with current U.S. Labor Department "regulations" stating that employers must treat brief breaks as worktime.  Certain Labor Department interpretative guidelines and opinions do say that short rest periods, coffee breaks, snacktimes, and smoking breaks count as compensable hours worked.  A number of courts have adopted most of these views.

Even so, and while a definitive answer must await future developments, it is difficult to see how these Labor Department statements could override the statute's directive that "[a]n employer shall not be required to compensate an employee receiving reasonable break time .  .  . for any work time spent for such purpose."  The Labor Department or the courts might eventually construe "reasonable break time" to mean some presumptive minimum number of minutes.  But interpretations issued decades ago seem insufficient in themselves to impose any requirement that breastmilk-expressing breaks be treated as compensable worktime when the statute itself says otherwise.  Whether pertinent state laws mean that these breaks are to be handled as hours worked is of course a different question.

FLSA Lactation Break Amendment.pdf (33.29 kb)