FMLA-Covered 15-Minute Rest Breaks Are Not Compensable

Last July, we posted on the U.S. Department of Labor’s announcement that it was reviving its practice of publishing opinion letters as guidance on wage and hour issues, which the Obama Administration halted in 2010. After leaving us all on pins and needles for months, the DOL has finally issued three new opinion letters. The letters address the following topics (drum roll, please…): 15-minute rest breaks for serious health conditions; employee travel time; and lump-sum payments to employees. Below is a summary of the 15-minute break letter; we will post separately on the other two topics.

The Scenario

Reunited and It Feels So Good—The DOL’s Opinion Letters Are Back (Part 1 of 3)Letter FLSA2018-19 explains that due to a serious health condition, a non-exempt employee can take eight 15-minute rest breaks per workday as intermittent leave under the Family and Medical Leave Act. The employee works an eight-hour shift but, due to the breaks, is only performing six hours of work. The employer wants to know whether these breaks must be compensated under the Fair Labor Standards Act.

The Guidance

The letter recognizes that a rest break up to 20 minutes in length is ordinarily compensable under the FLSA because it primarily benefits the employer. In certain circumstances, however, courts have held that frequent accommodation breaks primarily benefit the employee and do not require compensation. With that in mind, the DOL opines that the employee is not due compensation for his or her rest breaks.

Lastly, the letter emphasizes that employees who take FMLA-protected breaks must also receive as many compensable rest breaks as their coworkers. So, if the employee’s coworkers receive two paid 15-minute breaks during an eight-hour shift, the employee is entitled to 10 breaks total, the first two paid and the remainder unpaid.


This opinion letter is an important reminder of the intersections between the various employment statutes. Depending on the employee’s serious health condition, issues under the Americans with Disabilities Act and the applicable state workers’ compensation statute could also come into play. Call your lawyer if you think you need help navigating your obligations under one statute in a way that won’t run afoul of another. And don’t forget that we can now ask DOL for an opinion letter.

Read part 2 and part 3.