$5 million Executive
Severance Pay
$4 million Whistleblower
$1.5 million Retaliation
$1.2 million Whistleblower
$1.1 million Age
$1 million Gender

Going to the Bathroom on the Clock Isn’t Wage Theft

Earlier this year, a federal judge ruled that a Pennsylvania company with an office in Woodbury Heights, New Jersey owed employees almost $2 million in back wages for forcing its employees to clock out for even very short breaks – including trips to the bathroom.

Flex Time or FLSA Violation?

According to the Department of Labor (“DOL”), who filed the lawsuit, American Future Systems, which was doing business as Progressive Business Publications in Pennsylvania, Ohio, and New Jersey, forced its telemarking employees to clock out when they were not making sales calls. In fact, employees were not even allowed to get water or go to the bathroom without clocking out. The times during which employees were clocked out were then deducted from their pay.

The DOL discovered what the company was doing and filed suit. Even during the period during which the lawsuit was ongoing, however, the company refused to stop their clock out policy, arguing that what they were doing was actually really fair because they were giving employees the flexibility to manage their own schedule and take as many breaks as needed during the day.

The judge, relying upon regulations that make clear that short breaks (typically those under 20 minutes) are compensable, ruled that the company’s clock in/clock out policy was a violation of the federal Fair Labor Standards Act (FLSA). The company is now on the hook for over $1.75 million in back wages and liquidated damages owed to more than 6,000 employees.

Employees Must Be Paid for Short Breaks

The FLSA does not require employers to give their employees short breaks for things like smoking, grabbing a drink, or going to the bathroom; however, employers who permit their employees to take short breaks (anything in the 1-to-20 minute range), must pay for those breaks. Put more succinctly (and more legally) short breaks are considered compensable time – meaning that employees must be paid for that time. All compensable time must be included in the sum of hours for the work week, counted for purposes of determining whether an employee has earned overtime, and used to calculate how much overtime was earned.

So, for example, if a non-exempt employee worked 42 hours over 5 days during one week, but spent an average of 30 minutes on multiple small breaks throughout each day, the employer would still need to pay the employee for 42 hours of work that week. That means that unless the employee was exempt from the FLSA’s or New Jersey Wage and Hour Law’s (NJWHL) overtime rules, the employer would be legally required to pay that employee 40 hours at the regular rate of pay and 2 hours of overtime at one and one-half times the regular rate of pay. Adding up all the breaks (an average of 30 minutes per day times 5 days = 2.5 hours). Subtracting those 2.5 hours from the total hours worked in order causing the employee to appear as if s/he worked less than 40 hours during the week is not permitted.

If you are not being paid for all hours worked or are being denied overtime pay that you have earned, you should contact experienced employment law attorney like those at Lenzo & Reis, LLC.

Client Reviews
"Professional and Knowledgeable Attorney. At what was supposed to be the highest point in my career suddenly became the most harassing and lowest point of my career and I was passed over for a promotion. Not because the other person was more qualified than I was, but because I followed the law and did the right thing and the people I worked for did not like that. After researching several attorneys, my wife and I found Claudia, and the decision to retain her was the best decision we ever made. After explaining our case to Claudia, we found that she was not only extremely professional but a very caring human being. Throughout the entire process of our case, Claudia was there with us every step of the way. She explained every single proceeding that we had to go through and guided us, not only as a professional attorney in and out of court, but personally as a caring and understanding person. Because of her extensive working knowledge of employment and labor laws, Claudia was able to successfully resolve our case. My wife and I will always be extremely grateful for Claudia’s hard work and dedication, and we highly recommend Claudia Reis to anyone seeking an attorney who practices in employment and labor laws." John
"Professionalism, integrity, and determination. Outstanding representation! Chris Lenzo did an outstanding job in my employment discrimination case. He responded to my questions in a timely fashion, provided clear communication through each step of the process, and handled my case in an honest and straight forward manner. Chris’s expertise in employment law along with his hard work ensured justice would prevail in my case and got me the compensation I deserved. Likewise, Chris’s law firm staff was professional, courteous, organized, and effective. I highly recommend Chirs Lenzo’s firm to anyone with an employment legal matter in New Jersey or New York." Sofia
"Remarkable professional. I have worked with Ms. Reis and her firm for the past three years. During the consultation process, you will immediately experience her compassion as she offers suggestions and guides you through the difficult situation you are dealing with. Her attention to detail, timely follow up and candid manner ensured me that I was well-protected and represented. Ms. Reis always went above and beyond to protect me legally. She is a very strong and tough (when necessary) advocate for the individual she represents. Her support staff is equally diligent. I would recommend her without reservation." A.M.