January 21, 2016

Bill Wiseacre has finally gotten back on track. Uh Oh Enterprises, LLC has gained some traction and Bill needed some administrative support, so he hired two new employees, George and Jane, to help with general administrative tasks around the office. George was hired to answer the phone and greet Uh Oh Enterprises’ clients. Jane was hired to perform general administrative tasks, such as making copies, transcribing documents, and filing papers.


After several months, Bill started getting complaints from clients that they received no answer when they called Uh Oh Enterprises’ main phone number. Bill realized that George was stepping away from the front desk for several minutes every half hour or so in order to stretch his legs, go to the bathroom, or get a snack from the break room. When Bill asked him about his frequent breaks, George complained that he just hated sitting in the same spot all day long, and that walking around for a few minutes made it easier to get through the day. Bill told George that he needed to make sure someone was there to answer the phones at all times, and if he was going to step away, to let Jane know so that she could take over.


This system seemed to work at first, but Bill realized that Jane’s work started piling up with so many interruptions, forcing her to stay later in the evenings. Since Jane was an hourly employee, the extra time she spent finishing her work was affecting Uh Oh Enterprises’ bottom line. Bill pulled George aside and told him that while he was happy to allow small breaks throughout the day, George would have to clock out whenever he stepped away from his desk. This would offset the extra amount he was paying to Jane for stepping in to answer the phones when George took a break.


After receiving his paycheck and realizing just how much had been docked from his pay for his small breaks, George filed a complaint with the Department of Labor, claiming that he should have been paid for his breaks, and started looking for another job. The next day at work, George told Jane about the complaint that he filed, and that he was going to “get out of there as soon as possible”. Jane, irritated that she would now have to do both her job and George’s, approached Bill and asked him for a raise. She told him about the complaint that had been filed, and that George was planning on leaving.


Bill was furious about George’s complaint. He felt as though he had been extremely generous with allowing all of George’s breaks, and that requiring him to clock out was completely reasonable. After considering all of the circumstances, Bill decided to fire George. After all, the work wasn’t being done and George was planning on leaving anyway. Two weeks after letting George go, Bill was served with a lawsuit from George’s attorney for violations of the Fair Labor Standards Act and for retaliation.


Unfortunately for Bill, even though small breaks are not required under the FLSA, breaks in accordance with a company’s policies must be compensated as work hours. Furthermore, once an employee files a written complaint about a violation of employment laws, they cannot be fired for having made such a complaint.

The Momentum Law Group perspective:

  • Unfortunately for Bill, the reality is that, in allowing the small breaks throughout the day, he was required to compensate George for hours worked and he should not have forced him to clock out.
  • If Bill had thought carefully about his company’s needs and company policies regarding breaks, he would have been able to craft a policy that worked for everyone and did not run afoul of the FLSA.




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