One of our supervisors is asking a person who works for her to clock out every time she is not working (i.e.- to get coke, restroom, etc). This is an individual who has an attendance problem, and the manager is attempting to "track" her time more effectively.
I know that the FLSA reg's indicate breaks from 5 - 20 minutes in length should be compensable and so I am wondering if it is legal to ask someone to "Clock-out" , and therefore not receive pay, every time they are "technically" away from their desk??


  • 5 Comments sorted by Votes Date Added
  • The supervisor has every right to track an employee's time away from "work"
    for the purpose of guaging whether breaks are being abused, but the actual
    time away from work for breaks will still count as "time worked" under the
    FLSA. The supervisor can discipline people for wasting time, but must still
    pay them. Bob

  • HR Guy:

    Below are two items that should be helpful.

    Christy Reeder
    Website Managing Editor

    An excerpt from our New Mexico Employment Law Letter:

    Although the Fair Labor Standards Act (FLSA) does not require you to provide employees with rest or meal breaks, it does require you to pay for rest or meal breaks under certain circumstances. Rest periods of short duration, generally less than 20 minutes, must be treated as hours worked because employees do not have sufficient freedom during such a short period. Rest periods of more than 30 minutes are not considered hours worked, provided that employees are totally relieved of duty for the entire period of time or the break is not for the predominant benefit of the employer.

    Another source: 29 CFR §785.18 Rest.

    Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945))

  • I think you are running a real risk from a wage and hour perspective. Why
    not keep track of absenses with a dummy time card or other piece of paper
    not used for pay purposes.

    John Vering

  • I wouldn't require someone to clock in and out for "breaks" as this is paid time. You could have a sign in and out log for breaks, for you would probably have to require all your employees to sign in and out. We had this problem in a department with employees taking excessive "smoke" breaks. The supervisor just required the employees to sign out when they left and sign back in when they returned to their work station. As soon as employees realized there was going to be a control here, they stopped abusing the situation. I agree it is a disciplinary issue, not a time issue.
  • There are always those "special few" who create the problems. Have you found that employees truly sign out and back in for all smoke breaks, etc? Where do you post the sign-out sheet? Does it not cause a morale problem of "they don't trust us"?

    Even though we have a written policy allowing only one five-minute smoke break in the morning and again in the afternoon, it's really hard to "police".

    I don't think some people...smokers and non-smokers alike...realize how often they actually take time off to run to the break room or out to smoke.

Sign In or Register to comment.