Department of Labor Confirms That Additional Breaks Primarily For The Employee’s Benefit Need Not Be Counted As Work Time

Yingtao Ho

Pursuant to long established regulation, breaks of between 5-20 minutes in duration that enable the employees to refresh themselves and to work more efficiently must count as time worked.  29 C.F.R. §785.18.  In an April 12, 2018 opinion letter, the Department of Labor tackled the question of whether an employee, who because of a medical condition must take a 15 minute break during every hour worked, must be paid for each of eight 15 minute breaks taken during an 8 hour workday.

The opinion letter affirmed that an employer must only compensate an employee for breaks that it generally makes available to all of its employees.  If an employer permits all of its employees two 15 minute rest breaks during an 8 hour shift, these breaks must be counted as time worked for all employees.  The opinion letter also confirmed that these breaks are primarily for the employer’s benefit, and must be compensated, regardless of what the employees do during the breaks.

On the other hand, if the employer provides special breaks to accommodate a specific employee or specific group of employees, those breaks are primarily for the employees’ benefit, so that they need not be counted as time worked though they are also 5-20 minutes long.

The same outcome would also result under Wisconsin law.  DWD §272.12(2)(c)1 states that rest periods that are shorter than 30 minutes in duration must be counted as work time if they promote the efficiency of the employee, and are customarily paid as work time.  Additional short rest periods that an employer offers to accommodate one or a specific group of employees are not customarily paid as work time in Wisconsin, and therefore should not count as work time under §272.12(2)(c)1.  Nor can the employees rely on DWD §274.02(3) to argue that these breaks must be paid, because that regulation applies to meal breaks only.