For the first time in nearly a decade, the Wage and Hour Division of the U.S. Department of Labor issued several Opinion Letters, including one addressing the compensability of fifteen minute rest breaks required every hour due to a non-exempt employee’s serious health condition under the Family and Medical Leave Act (“FMLA”).
Applying the test articulated in Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944), “[w]hether [the time] is spent predominantly for the employer’s benefit or for the employee’s,” the DOL opined that the fifteen minute breaks at issue were noncompensable because they were “given to accommodate the employee’s serious health condition” and therefore, predominantly benefited the employee. This conclusion is in accord with the FMLA itself, which expressly states that FMLA-protected leave may be unpaid. 29 U.S.C. § 2612(c).
The DOL, however, clarified that “employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers receive. For example, if an employer generally allows all of its employees to take two paid 15-minute rest breaks during an 8-hour shift, an employee needing 15-minute rest breaks every hour due to a serious health condition should likewise receive compensation for two 15-minute rest breaks…” (Citations omitted).
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