Is it Legal to Dock Pay for Employees Returning Late from Breaks?

By Katherine Muniz
January 29, 2016

As a time and attendance company, we know that when it comes to giving employees breaks, each company has their own policy. A growing trend we’ve noticed is that many of our clients dock their employees’ break pay if they exceed their allotted break time, even if only by a minute. For us, this raised the question – where did this come from, and is it legal?

What the Federal Law Requires

The Department of Labor considers short breaks of 5 to 20 minutes to be “compensable work hours to be included in the sum of hours worked during the workweek.”

Roughly translated, employers are required to pay their employees for breaks of that duration. However, if an employee exceeds their break, it’s a different story. The DOL also explicitly states that “Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time.” (See the full statement here.)

So what does that mean? When asked whether employers are legally within their right to dock pay for breaks that go beyond the specified time frame, all law experts consulted said no.

Law Experts Break Down the Meaning

According to Liz D’Aloia, an employment attorney and founder of HR Virtuoso Company, “You can’t dock an employee the full break time if they return to say, 3 minutes late. The stated break time is compensable time. You can dock them for the 3 minutes of pay, but this becomes an HR issue. If the employee decides to go to the state Department of Labor, you’re potentially opening yourself up to litigation — and even an onsite investigation for 3 minutes worth of pay.”

Docking any employee of pay becomes a slippery slope, but to force an employee to go without pay for a minor infraction doesn’t pay, says, Alena Shautsova, an attorney practicing law in New York. “When an employer docks the pay for the whole short break when an employee returns a few minutes late, an employer violates regulations by depriving an employee of earned compensation for all work time.”

Under federal law, points out Ben M. Rose, of the Law Offices of Ben M. Rose, PLLC., an employer cannot change breaks the law says are compensable at their own will. “The Code of Federal Regulations says short rest periods of 5 to 20 minutes are paid.  I would not advise docking all 23 minutes of pay for an employee returning from a rest break 3 minutes late.”

So, what do they suggest?

D’Aloia suggests utilizing performance management techniques over docking pay to resolve matters over breaks. “I believe it is better to pay the break time and performance manage the person for being late. If the employee is habitually late, you can performance manage them and your documentation will also help you contest an ensuing unemployment claim.”

Rose adds that having a clear, outlined policy is important, too. “The best practice would be to be sure the company has a policy setting forth how long rest breaks will be and then document violations.”

From a different perspective, Richard Celler, Esquire, and Managing Partner of Richard Celler Legal, P.A., states that as a general rule of thumb, he advises clients to pay employees for all break time under thirty minutes. “So, technically, the law states that up to 20 minutes are compensable.  However, there are situations where the Department of Labor’s own investigators,  as a matter of enforcement during DOL audits, have taken the position that an employer must pay workers for all breaks that are less than 30 minutes,” says Celler. “They rationalize this by stating that they don’t have to engage in a break-by-break analysis to determine a violation and simply draw this bright-line rule.”

“Interestingly, and I have seen this happen, the DOL’s enforcement position is inconsistent with its own regulations and case law.  So as a rule of thumb, I tell my clients based on this experience that anything less than 30 minutes should be paid.  Anything over 30 minutes (assuming the break is uninterrupted) doesn’t have to be paid, even if the break was intended to be less than 30.”

The 30 minutes perhaps comes from the DOL’s view on bona fide meal breaks, which are not required to be paid, and start at 30 minutes.

What You Can Do to Be Fair

Clearly outline and discuss your company’s policy on breaks with your employees. Give your employees fair notice and make sure your employees know what the consequences will be.

Also, says D’Aloia, employers need to be mindful of their time clock mechanisms. “If there’s an only one-time clock, and 25 people are waiting to punch in/out, it’s impossible for everyone to be within exactly 15 minutes of a break period.”

Time rounding was built to help alleviate this exact scenario, and FingerCheck time clock software allows you to set rounding rules so employees can still clock in around their specified break time and be counted as in-bounds. Also, FingerCheck lets you custom build and implement your own break policy, according to your pay rules.

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