Pennsylvania Labor Attorney Alert: Third Circuit Clarifies When Unpaid Breaks Should Counts as Work

The Third Circuit Court of Appeals recently issued a very worker-friendly opinion entitled Secretary U.S. Dept. of Labor v. American Future Systems, Inc., 873 F.3d 420 (3d Cir. 2017). You can read a copy of the opinion HERE.

In this case, the employees worked from home as Sales Representatives, and the company only paid them for time they were logged-in to their computer systems. Under the company’s “flex time” policy, the employees were free to “take breaks from work at any time, for any reason, and for any duration.” The company did not pay the employees for any breaks lasting more than 90 seconds.

The Court explained that the company’s policy violated the U.S. Department of Labor’s regulation entitled “Rest” and located at 29 C.F.R. 785.18. This regulation provides, in part: “Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.”

The Court explained that the above regulation represents a longstanding, “bright line” rule that promotes certainty and predictability in determining when rest or break periods must be paid. The fact that the company wrapped the unpaid breaks into a “flex time” policy as irrelevant.

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