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Federal Courts Reject Employer’s Attempt to Sidestep FLSA Break Rules By Calling Its Break Policy Flexible Time

When it comes to an employer’s complying with the Fair Labor Standards Act, there may be a variety of ways that the employer can violate the law and open itself up to liability. Knowledgeable New Jersey wage law attorneys can help you determine if your employer is operating afoul of the law in the way that it pays you. One area in which problems can arise is breaks. As the federal Third Circuit Court of Appeals explained, an employer does not have to maintain a break policy, but, if it does, it must comply with the FLSA’s rules.

The employer that was sued in this action was a print and online publishing firm based in suburban Philadelphia. Among its employees, the publisher had on staff a group of sales representatives who earned compensation in a variety of ways. The employer paid them a base hourly wage and also gave them the ability to earn bonuses. Until 2009, the employer gave the sales representatives two paid 15-minute breaks each day.

In 2009, the company crafted a new system that eliminated paid breaks. The new arrangement allowed representatives to log on and off at their own discretion, with the employer paying the employees only for the time when they were logged in. Any break, regardless of duration, was unpaid as long as the worker was logged off for more than 1.5 minutes. The new system maximized “employees’ ability to take breaks from work at any time, for any reason, and for any duration,” according to the employer. The average sales representative worked five hours per day and received $7.25 per hour.

Whether the employer designed the “flex time” system to enhance employees’ work experience or enhance its own profitability (or both) didn’t matter. Regardless of the reason for the change, the new method was not compliant with the FLSA, according to the Department of Labor.

The federal courts, including the Third Circuit (whose decisions govern New Jersey and Delaware as well as Pennsylvania), agreed with the Department of Labor. The Third Circuit rejected the employer’s argument that, since it allowed its sales representatives to log off and on completely freely, the employer had no break policy, and the FLSA didn’t apply to its method for paying its sales reps.

Simply because an employer allows its “employees to log off and leave their work stations at any time, for any reason” does not mean that “it does not have to compensate employees if they take a break.” An employer cannot dodge the FLSA’s break rules simply by “disguising a break policy as ‘flexible time.’” The court’s opinion asserted the fallacy of this argument in a clear and colorful analysis, noting that the publisher’s flex time policy “forces employees to choose between such basic necessities as going to the bathroom or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his or her computer in less than ninety seconds.” Clearly, the court seemed skeptical about the feasibility of an employee’s accomplishing such a feat.

The lesson from the court was clear:  the law allows employers to have a break policy or not to have a break policy. The law does not allow an employee to have a break policy and claim that it doesn’t by hiding behind a claim of “flexible time.”

The skilled New Jersey wage law attorneys at Phillips & Associates have the experience that comes with spending many years helping employees with their FLSA, minimum wage, and overtime cases. If you’ve been harmed by an employer’s policy that violates the law, reach out to our team online or at (609) 436-9087 today to set up a free and confidential consultation. Talk to one of our skilled attorneys to find out how we can help you.

More blog posts:

Contract’s Arbitration Provision Doesn’t Stop New Jersey Dancer from Pursuing Her Minimum Wage Lawsuit, New Jersey Employment Lawyer Blog, Oct. 16, 2017

Company VP Entitled to Litigate His New Jersey Wage Dispute in Court Despite the Existence of Arbitration Clause in Employment Contract, New Jersey Employment Lawyer Blog, May 18, 2017

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