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One of our employees requires intermittent 15 minute breaks under FMLA. Are we required to compensate that employee for the time spent on those breaks?
A:  Under the Fair Labor Standards Act, short employee breaks of less than 20 minutes are generally compensable time.  However, a
conflict arises when an employee must legitimately and lawfully take such frequent breaks, each of less than 20 minutes, that it
substantially affects productivity.  The Department of Labor recently helped us clarify how to resolve that conflict.  In a recent
opinion letter, the DOL noted that FLSA regulations and case law generally find that short rest breaks for employees "promote the
efficiency of an employee" and therefore are compensable because that primarily benefits the employer. On the other hand, breaks
provided pursuant to FMLA are for the primary benefit of the employee. Therefore, the DOL concluded in its Opinion Letter, an
employee's breaks pursuant to FMLA (as intermittent leave) are not compensable breaks under the FLSA, because they are provided for
the primary benefit of the employee only.

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In the Zone: Land Use E-News (Fall, 2017) (PDF 96KB)
In the Zone is a publication of Ancel Glink's land use group.
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