by Todd Stanton

A colleague recently forwarded me a legal update from a national law firm, knowing I’d be interested in a piece on a new Department of Labor standard. The article discussed whether short breaks, which are typically compensable under the Fair Labor Standards Act (FLSA), become unpaid if they’re taken for medical reasons, and are instead covered by the Family Medical Leave Act (FMLA). All that said, it was a lot of spilled ink simply to speculate whether an employer has to pay a particular employee for the occasional short break under some very specific, and necessarily limited, circumstances.

My problem wasn’t with the author’s legal analysis or conclusions. His article was well thought out, supported, and cited. And, if the very narrow issue upon which he was expounding ever came up, maybe his pedantic approach would ultimately carry the day in court, too. I don’t know.

What I do know, though, is that most employers (including many of our clients) would be bankrupt from the legal fees they racked up litigating whether an employee’s quick breaks were compensable. Even if my clients did everything perfectly from a compliance standpoint and had a completely supportable legal position, taking such a narrow view of the situation would be a disastrous business decision.

Why do lawyers sometimes lack perspective?

Everyone wants a smart lawyer. But at an employment law firm, practicality, recognition of the bigger picture, and awareness of the bottom line become just as important as knowing what is passable under the law. Just because something is legal doesn’t mean you should do it. Lawyers lacking this perspective get tangled up in small disputes. They forget their job is to get the business back to productive work as quickly as possible.

Let’s illustrate this with a quick look at that short-break problem. Our hypothetical employer allows its hourly employees to take a 15-minute break every two hours. Under the FLSA, those breaks are compensable and the employer absorbs them as a cost of doing business. But one employee has a breathing problem (an FMLA-qualifying condition) and needs a 10-minute break every hour. Does the employer have to pay that 10-minute break and the subsequent 15-minute break?

My advice 99 times out of 100? Pay the damn 10 minutes. What’s that going to cost? If it’s a $12-an-hour employee, that’s an additional $8 across a workday beyond the breaks for which the employer would be paying anyway. That’s just $40 across a five-day work week and only $2,000 to make the issue a non-issue for a full 50-week year.

Compare that to the option of not paying the 10 minutes. Do you think that employee is going to be happy with the company and intent on doing his best for the employer during the other 50 minutes on the clock? Not likely. So add up that lost productivity. Think the employee’s co-workers are going to think you’re a great boss for short-changing their buddy struggling to get air? I’m guessing not so much, and I’m betting that your argument that the FLSA allows you to avoid paying is not going to be persuasive to your rank and file.

Moreover, if the employee decides it’s unfair and speaks with a plaintiffs’ lawyer who challenges the practice, my (very reasonable) rate is $325 per hour. If I spend any more than six hours discussing and negotiating with the employee’s lawyer, you’ve spent the $2,000 anyway, even if they decide to go away (which they won’t). Then that other attorney is going to want something for his or her time, too, and now you’ve got an employee who’s raised FMLA and wage-and-hour concerns. That’s a retaliation case waiting to happen.  

Cast in this light, providing the short paid break is a no-brainer, at least until we see what other problems come up. If the circumstances change, we can revisit the cost-benefit analysis and change strategies if necessary. See how easy that was?

Bide your time

In our experience, it’s about 5 percent of employees who cause 95 percent of the employment-law issues. Your short-of-breath employee who needs some sort of modest accommodation is either one of those 5 percent of problem employees or he’s not. What’s the result of giving him the 10 minutes?

If he’s in the 95 percent of good employees, he’s valuable to your business and he’ll appreciate being able to manage his health, do his job, and get paid. I can easily build a business case to show why this is a win-win.

If he’s in the 5 percent, sure, maybe he’ll take advantage of the situation in the near-term. He’ll enjoy a whopping $8 per day of unearned pay. But has he “won”?  Have you “lost”?

Here’s the other thing about the 5 percenters: They almost always mess up on their own. And, eventually, most will do so in a way that lets you deal with them with much less risk.   Indeed, the FMLA and the FLSA are exceptionally employee-friendly laws, meaning your 5 percent employee – no matter how poorly performing or disruptive – stands a good chance of winning if those laws are at the root of the dispute. And he’ll certainly have the capacity to make your life difficult as you fight about who is right and wrong.

So let’s try a little patience. Give in on the employee-friendly matters. Make practical decisions based on your business and not necessarily whether you’re “right” on every issue. Ride it out for a bit, and if it turns out we’re dealing with a 5 percenter, reasons that are more employer-friendly, such as performance and work attendance, will likely materialize to help solve the problem with less overall expense and hassle.

Don’t sweat the small stuff, and don’t let your employment law firm do it either

At Stanton Law, we recognize not every hill is worth dying on. A prudent approach is often better for the client’s bottom line. That’s why we try to take a big-picture view with every client. If you have an employment problem and need help from a management-side business lawyer, contact us at 404.531.2341.