Must You Pay Employees for Time Spent on Smoking Breaks?

Employees Must be Compensated for “Short Breaks”

Q: You permit your employees to take a series of short smoking breaks that do not exceed 20 minutes. Are you required to compensate your employees for the time they spend smoking?A: Yes. A U.S. Department of Labor (DOL) Wage & Hour Administrator determined that employees must be compensated for that time since such short breaks are “hours worked” under the Fair Labor Standards Act (FLSA).

The FLSA does not require an employer to provide its employees with rest periods. However, if the employer decides to permit short breaks, then the time is considered compensable hours worked. the general rule of thumb is that any breaks up to 20 minutes should be compensated.

The Administrator observed that employees have always taken short work breaks, with pay, for a myriad of non-work purposes-a visit to the bathroom, a drink of coffee, a call to check on children, attending to a medical necessity, a cigarette break, etc.

Thus, the DOL has consistently held for over 46 years that such breaks are “hours worked” under the FLSA, without evaluating the relative merits of an employee’s activities. This position is based on the proposition that short breaks are common in the industry, promote the efficiency of employees, and are customarily treated as work time by employers.

Be Cautious Before Withholding

An organization’s attempts to curtail costs by withholding employee compensation for short breaks should be scrutinized carefully. The employer in this instance thought wisely and contacted a Wage & Hour Administrator for advice before taking any action, avoiding the possibility of litigation and its accompanying cost.
SACS Consulting and Investigative Services, Inc.
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Tim Dimoff, Speaker, National Expert, Author: