Commentary

Pay Requirements — The FLSA vs. FMLA

The U.S. Department of Labor issued a recent opinion letter addressing paid and unpaid breaks for FMLA-mandated intermittent leave.  The opinion letter resolved a conflict between the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

Under the FLSA, breaks lasting twenty minutes or less normally are deemed for the employer’s benefit and therefore are compensable.  Under the FMLA, an employee is entitled to up to twelve weeks of unpaid leave per year for a serious health condition, which can be taken intermittently.  So, what happens when an employee requires, say, a fifteen-minute break each hour as intermittent FMLA for his or her condition?  The employee is only working six hours of an eight-hour work period. Is the time not spent working to be paid under the FLSA or is it unpaid under the FMLA?

The DOL has now said that FMLA-required breaks are primarily for the employee’s benefit and therefore can be non-compensable.  Note, however, the matter may not be that simple to resolve.  The FMLA-protected employee is still entitled to the same paid breaks as other employees.  So, for example, if the employer normally provides two paid fifteen-minute breaks per eight-hour workday, which is common in many work settings, two of the eight hourly FMLA breaks would have to be paid to the covered employee as well. The other six breaks under the FMLA could be unpaid.

This new rule answers some questions, but could create other issues.  While breaks for something like a typical production line are often scheduled to the minute, many employers in more flexible work environments allow or even need daily adjustments when a short break is to be taken.  (Smoking breaks are a common example.) If those breaks are taken more frequently by some, or for longer periods, further adjustments would have to be made for the FMLA-covered employee as well.

Nothing is ever simple.