Don’t fail to pay, says FLSA, but what about when employees leave?

Q          We have a policy that states employees must clock out for breaks if they leave campus, but the Fair Labor Standards Act (FLSA) requires that employees be paid for breaks of 15 minutes or less. Is our policy in violation of the FLSA?

The U.S. Department of Labor (DOL) frequently fines employers that treat short breaks (less than 20 minutes) as unpaid breaks. This happens when employees’ time records show a short break and the corresponding payroll doesn’t treat the time as compensable hours worked.

As you may know, federal law doesn’t require employers to provide lunch or coffee breaks, but when offering short breaks (usually less than 20 minutes), the FLSA treats that time as hours worked. Failure to pay for that time can result in unpaid regular and potentially unpaid overtime wages.

The New Hampshire DOL follows the FLSA and often fines employers for unpaid short breaks. Lunch breaks must be permitted under New Hampshire wage law (after five consecutive hours in a workday), and those breaks are supposed to be 30 minutes and can be unpaid. Any lunch break shorter than 20 minutes would have to be treated as compensable time. In your scenario, the policy requires employees to clock out when they leave campus. That in and of itself wouldn’t be a violation of the FLSA or New Hampshire wage law.