You may be reading this article on a “break” during your workday. To the extent that you are paid by the hour (and not just billing by the hour), the Fair Labor Standards Act and its regulations govern whether you are to be paid for that break. In Perez v. American Future Systems, No. 12-6171 (Dec. 16, 2015) (Restrepo, J), the court found that an employer must always pay employees for breaks of 20 minutes or less under the act.

|

Time Off the Computer Is Unpaid

Progressive Business Publications creates and sells business information publications. Its sales representatives work at call centers in Pennsylvania, Ohio and New Jersey, according to the opinion. The sales representatives, working at the call centers, log on to Progressive's computer system upon arrival at work and, throughout the day, make outbound sales calls, document the results of the calls and perform various other tasks at Progressive's direction. The company's policy is to pay sales representatives “only … for the time that they are logged into the timekeeping system,” the opinion said.

In or around June 2009, the Department of Labor began investigating Progressive's break policy, according to the opinion. The next month, Progressive implemented a policy whereby “representatives may take personal breaks at any time for any reason. Personal break time is not paid because it is a disadvantage to the representative to do so.” As such, it was the company's policy that any time a sales representative was not directly and actively engaged in work for the company (for example, if the representative used the restroom or got a cup of coffee), he or she was required to log off of the computer ­system, which would result in the representative being “off the clock” and his or her time would not be paid.

|

Department of Labor Files Suit

The secretary of Labor brought suit against Progressive for violations of the FLSA in November 2012. Specifically, the suit alleged that because Progressive's sales representatives were not being compensated for breaks of 20 minutes or less, they were being paid below minimum wage.

After extensive discovery, the parties filed cross-motions for summary judgment.

|

Breaks Are 'Rest,' Not 'Off Duty'

The principal dispute centered on which section of the DOL's regulations applied to Progressive's break policy. Progressive argued that 29 C.F.R. Section 785.16, relating to periods when employees are “off duty,” governed the break policy. Specifically, because Progressive allowed employees “to take as many breaks as they want for as long as they want,” the unlimited (but unpaid) breaks were periods “during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.” Under Section 785.16, this time is not characterized as “hours worked.”