When Can a Paid Break Become Unpaid?

Many of our clients contract to government entities – which means additional scrutiny from the Department of Labor.  If you have drivers that fall under the Service Contract Act, you are required to comply with the Fair Labor Standards Act.  We have seen increased DOL audits with our clients, and more companies are using LoadTrek to create work plans and monitor compliance with established plans.

A key provision is the creation and monitoring of authorized break periods – and the rules that stipulate whether or not these breaks should be compensable.

Many employers assume that, when an employee stretches a 15-minute break to 25 minutes, the FLSA does not allow the additional 10 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 work time, 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.

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.

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:

  • Meal breaks, which are typically noncompensable time
  • “Short” rest breaks of “about 20 minutes” or less, which the Labor Department says are typically compensable time
  • Break periods which are neither meal breaks nor “short” rest breaks, which might or might not be compensable time.

We recommend that routes are created with break times and locations built into the route.  These break locations should have instructions that explain the nature and expected duration of the break.