With the January 1 pending increase to the minimum salary required to claim exemption from the Fair Labor Standards Act’s overtime provisions, many employers are facing the need to reclassify as non-exempt workers who will not be paid the required salary. Now is a good time for companies to refresh their understanding of working time requirements for all non-exempt employees.

Employers regularly consider employees to be "off the clock" for rest, break and meal periods. However, the FLSA regulates when such breaks can be excluded from compensable working time. To exclude that time, the employee must have a sufficient opportunity to spend the break as they wish. While the FLSA sets a minimum duration of 20 minutes for unpaid breaks, those under 30 minutes could face scrutiny depending on the particular facts and the employee’s ability to fully disengage from work activities. To count the break as unpaid, the employer cannot restrict the employee to the work premises.

A common error committed by employers involves unpaid break times where the employee is not really relieved of work duties. For example, a clerical employee eats lunch at her desk. While she is not working per se, if the phone rings during lunch, she answers it, and interrupts her break. The Department of Labor would consider such scenario to require pay for the break time because the employee was not completely relieved of work. As a result, some employers require that employees take unpaid break times in a different place than their normal working area.

In recent years, plaintiffs' lawyers have filed numerous collective action lawsuits alleging failure by employers to follow unpaid break time rules. Employers should carefully review their break policies and train managers to avoid inadvertent violations of these important wage payment requirements.

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