Employers are obligated to pay their employees for breaks of 20 minutes or less under the Fair Labor Standards Act, the U.S. Court of Appeals for the Third Circuit ruled in a precedential decision Friday.

The court affirmed a district judge's ruling granting the secretary of the U.S. Department of Labor's motion for partial summary judgment on its claims that Progressive Business Publications failed to pay a minimum wage.

According to Third Circuit Judge Theodore McKee's opinion, Progressive's hourly employees were only paid so long as they were logged into their computers. While the company had eliminated paid 15-minute breaks, it allowed its employees to log off of their computers at any time, which Progressive calls “flexible time.”

Progressive stopped paying employees after they were logged off for more than 90 seconds. Employees were required to log off to get coffee and use the bathroom. The company argued on appeal that the time spent logged off does not constitute “work” under the FLSA.

“The policy that Progressive refers to as 'flexible time' 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 90 seconds,” McKee said.

He continued, “If the employee can somehow manage to do that, he or she will be paid for the intervening period. If the employee requires more than 90 seconds to get to the bathroom and back, the employee will not be paid for the period logged off of, and away from, the employee's computer. That result is absolutely contrary to the FLSA.”

McKee said that employers don't need to have a break policy in place, but the court refused to hold that the FLSA allowed employers to disguise one as something else.

Progressive further argued that if employees would be able to take advantage of a bright-line rule allowing them to be paid for short breaks, they could take as many as they please as long as they are under 20 minutes.

“We recognize this is a theoretical possibility … but not a realistic one,” McKee said.

Progressive is represented by Alfred W. Putnam Jr. of Drinker Biddle & Reath in Philadelphia, who said his client “believes it's not right and will be considering the options available.”

Federal attorney Rachel Goldberg of the Department of Labor, Division of Fair Labor Standards represented the government. The DOL did not respond to a request seeking comment.

P.J. D'Annunzio can be contacted at 215-557-2315 or [email protected]. Follow him on Twitter @PJDannunzioTLI.