Thursday, September 12, 2013

Bathroom breaks do not equal breaks in pay

Yesterday’s post on OSHA’s bathroom rules generated an interesting reader question: can an employer deduct bathroom time from an employee’s pay?

The answer is no. Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period for which an employer must pay its employees.

Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to pay your employees for bathroom time, there is also a good practical reason. Treating your employees like tagged wildlife—tracking and recording their every move within the workplace—will create an work environment of distrust and apathy. Instead, you should treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and is looking for other way to fill time? Or is the employee a slacker that needs counseling, and if necessary, discipline?

Address the underlying performance issue on an employee-by-employee basis; avoid implementing company-wide edicts that will alienate the majority of your employees.