Give Me a Break: The Need for DOL to Review Outdated and Stifling Workplace Rules

James Paretti

As the U.S. Department of Labor (DOL) prepares for new leadership in the coming months, now more than ever the time is right for it to consider a stem-to-stern review of its regulations under the Fair Labor Standards Act – a law passed in 1938, and implemented by regulations which often bear little relation to the realities of today’s 21st century workforce.

In this white paper, the authors examine one such regulation, which governs when certain workplace breaks must be compensated by an employer.  Under current rules – written eighty years ago and not updated since – an employer generally must pay an employee for breaks of less than twenty minutes, on the theory that breaks of shorter duration are not breaks in which the employee is truly free from work – that is, breaks that he or she could use for his or her own purposes.  This may have been true in 1940, when fifteen minutes might barely have been enough time for an assembler on the shop floor to clock out, leave the building, grab lunch, and return to the plant – but it is hardly the case in today’s workplace.  Today, an employee given fifteen minutes and a smartphone can order next week’s groceries, check in with a child’s teacher, catch up on world news, post a message to hundreds of thousands of people, or even buy a car.  In our 24/7 completely connected world, that seems very much like time the employee can use – and welcomes – for his or her own purposes.

The compensable break/time rule is but one example of a regulation that at best has grown a bit dusty, and at worse significantly stifles both worker and employer flexibility.  Rest assured there are others.  DOL could and should undertake an overhaul of its interpretive regulations, taking into account both changed worker preferences and the realities of modern working environments, with an eye toward creating the right incentives for both employers and employees to get that what they want out of their working relationships

DOL is to be commended for its effort to promulgate several “big ticket” FLSA regulations, including the definition of joint employer; the calculation of the FLSA “regular rate” for purposes of overtime compensation; and of course, the salary test for overtime eligibility.  While these significant rules are likely to draw much attention, we cannot lose sight of the fact that far less “sexy” rules sit on the books and impede employer and employee flexibility.  These too deserve full scrutiny.  Put more simply, in its pursuit of lions, DOL should not ignore the mice that sometimes roar.

James Paretti

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Littler Mendelson P.C.


Federalist Society’s Labor & Employment Law Practice Group

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