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Cost of Docking Workers for Restroom Breaks: $1.75 Million

January 12, 2016 Wage Theft & Unpaid Wages

An example of how some companies prey on workers who don’t know their rights

Imagine if you had to clock out every time you had to use the restroom. Chances are, you’d probably decide that remaining properly hydrated during the workday wasn’t that big a priority.

Going home thirsty with a few less dollars in your pocket would be the best-case scenario. If you had a medical condition that required you to visit the restroom several times a day, such as pregnancy or irritable bowel syndrome, your stakes would probably be even higher.

Thankfully, this sort of break policy is unlawful in the United States.

But one Pennsylvania company found a way to twist federal regulations on compensation so it could cash in on employees’ most-basic human needs.

Unfortunately, this is just another example of how some employers take advantage of the fact that their workers may not be aware of their rights.

Working for Less Than Minimum Wage

Telemarketers at Progressive Business Publications were told they had it good. According to the company’s upper management staff, as stated in a recent court opinion, staffers’ “flexible” work arrangement meant that they could take as many breaks as they wanted for as long as they wanted. All they had to do was log out of their automated call system first, and then they were allegedly free to run errands, go to the doctor, take a walk, or attend to personal business. In fact, if they wanted to knock off early and not return to work, that was supposedly fine, too.

The problem was that employees were also instructed to log out before they left their work areas to use the restroom.

When workers’ pay was computed at the end of a pay period, all the logged-out time was deducted from their hourly wages – including breaks as short as two and three minutes that occurred while employees were visiting the restroom.

Since much of the telemarketing staff was paid minimum wage, any deductions meant that they were receiving less than the federally mandated compensation for hourly workers.

Finally, a disgruntled staffer complained. The Department of Labor (DOL) got involved. It notified the company that it was violating the law by failing to pay minimum wage. It pointed out that federal regulations state that short breaks of under 20 minutes must be considered paid time.

But the company refused to come into compliance. The DOL ended up suing on behalf of 6,000 workers in Pennsylvania, New Jersey, and Ohio.

In court, the company argued that it didn’t have to pay employees for trips to the restroom because those breaks were essentially the same as time off. That is, employees were completely relieved of their work duties, just as they were when they left at the end of a shift. It pointed out that workers were permitted to take breaks whenever they liked and were not required to return to work afterwards.

The court didn’t buy that argument. It pointed out that the compensability of short breaks of under 20 minutes has rarely been questioned in the years since the Fair Labor Standards Act (FLSA) was created. In its opinion, the court stated “By ensuring that employees do not have their wages withheld when they take short breaks of 20 minutes or less to visit the bathroom, stretch their legs, get a cup of coffee, or simply clear their head after a difficult stretch of work, the regulation undoubtedly protects employee health and general wellbeing by not dissuading employees from taking such breaks when they are needed.”

Although exact amounts are still being calculated, the company was ordered to pay back wages and damages to the 6,000 workers involved in the lawsuit. The figure is estimated to be around $1.75 million.

(The case discussed here is Unites States Department of Labor v. American Future Systems, d/b/a Progressive Business Publications.)

What You Should Know About Breaks

It’s important to know what you’re entitled to in terms of breaks.

Neither federal nor Pennsylvania law guarantee most hourly employees any specific breaks, for meals or otherwise. Pennsylvania law has exceptions only for farmworkers and minors (age 14-17), who must be given 30-minute breaks after every five consecutive hours of work. Those breaks may be paid or unpaid.

But, according to both federal and Pennsylvania law, breaks of less than 20 minutes must be compensated. That’s generally to account for trips to the restroom, to allow employees to get a drink, to make a quick phone call home, or do any number of personal things that may need to be attended to during the work day.

Call Us For a Free Consultation

If you suspect that your pay has been unfairly docked, or if your paychecks have been short for any other reason, it’s a good idea to speak to an attorney who has experience in handling wage and hour violations.

Email us at or call (267) 273-1054 for a free consultation to find out more about your rights.