The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. These requirements involve a determination as to the number of hours an employee “works” each workweek. As explained below, the FLSA generally requires that compensable working time include any time that an employee is suffered or permitted to work. FLSA regulations further provide that, generally speaking, short rest periods of 5 to 20 minutes are considered compensable working time, whereas bona fide meal periods, typically 30 minutes or longer, are not working time.
Working Time is Time the Employee is Suffered or Permitted to Work
The FLSA defines “employ” as “includes to suffer or permit to work.” 29 U.S.C. § 203(g). FLSA regulations provide further guidance as what constitutes “work time,” for which minimum wages and overtime compensation (for work time over 40 hours per workweek) must be paid:
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.
29 C.F.R. § 785.11. This rule “is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.
Short Rest Periods: Generally Compensable Working Time
FLSA regulations provide that generally, short “rest periods” running from 5 minutes to about 20 minutes, are considered compensable working time:
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. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
29 C.F.R. § 785.18. Therefore, these short rest periods generally must be counted towards compensable hours worked for purposes of determining minimum wage and overtime compensation under the FLSA.
Bona Fide Meal Periods: Generally Not Compensable Working Time, But the Employee Must Be Completely Relieved of Duties
By contrast, FLSA regulations provide that bona fide meal periods, ordinarily running 30 minutes or longer, are generally not compensable working time. The regulations provide that bona fide meal periods do not include coffee breaks or time for snacks – those are rest periods. Rather, to receive a “bona fide” meal period, the employee must be completely relieved from duty for the purpose of eating a regular meal. If the employee is not completely relieved from duty, it is not a bona fide meal period, and the employee is deemed to be working while eating:
(a) Bona fide meal periods. Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
29 C.F.R. § 785.19(a). Notably, the regulation makes clear that an employee is not relieved of her duties if she is required to perform any duties, regardless of whether they are active or inactive, while eating. Thus, if an employer requires an office employee to eat at her desk, or requires a factory worker to stay at her machine while eating, the employee may be considered to be working while eating.
Permission to Leave Premises Not Required for a Bona Fide Meal Period
The regulations further clarify that for a meal period to be “bona fide,” and therefore not compensable working time, it is not necessary that an employee be permitted to leave the premises — so long as she is “otherwise completely freed” from duties during the meal period:
(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.
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