Do employees need to be compensated for time spent on smoking breaks?

Yes, a U.S. Department of Labor (DOL) Wage & Hour Administrator determined that employees must be compensated for smoking breaks since such short breaks are hours worked under the Fair Labor Standards Act (FLSA). The FLSA does not require an employer to provide its employees with rest periods. However, if the employer decides to permit short breaks, then the time is considered compensable hours worked.

The Administrator observed that employees have always taken short work breaks, with pay, for a myriad of non-work purposes-a visit to the bathroom, a drink of coffee, a call to check on children, attending to a medical necessity, a cigarette break, etc. Thus, the DOL has consistently held for over 46 years that such breaks are hours worked under the FLSA, without evaluating the relative merits of an employee's activities. This position is based on the propositions that short breaks are common in industry, promote the efficiency of employees, and are customarily treated as work time by employers.

Attempts to curtail costs by withholding employee compensation for short breaks should be scrutinized carefully.