smoking breaks paid under FLSA?

I just read an article that short smoking breaks of 20 minutes or less must be compensated under the FLSA because they are considere hours worked?  I'm confused.  I thought breaks were regulated under state law. 

We have our smokers clock out for their short smoking breaks because they leave the building and many were taking smoking breaks as well as the two 15-minute breaks per day that are scheduled.  Is this practice incorrect?


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  • There is something about short breaks being paid.  It's largely to prevent employers from putting time clocks at the entrances to bathrooms and abuses of that nature.  I doubt that you have to pay for a 15 minute smoking break (taken every hour).  I'll see what I can dig up if I can get some time this weekend.  Someone else may sound off before me.  I know of a few companies that make people clock out to smoke.
  • FLSA does not mandate breaks of any kind.  Breaks are regulated by state law and/or the employer.  To pay someone to smoke would penalize the non-smokers!  
  • That's not quite correct mardar.  The following is taken directly from the DOL website on the subject of short breaks (the issue of whether they are for smoking or clog dancing doesn't matter): 

    "Federal law does not require lunch or coffee breaks. However, when employers do offer short breaks (usually lasting about 5 to 20 minutes), federal law considers the breaks as compensable work hours that would be included in the sum of hours worked during the work week and considered in determining if overtime was worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished."

    So in essence if their company is permitting breaks lasting between 5-20 minutes, regardless of the reasons; the breaks are compensable work hours that must be paid. 

  • Agree with mandrews--we too have short breaks that are used for all sorts of things, smoking included.  We do not distinguish whether or not it is compensable by the act you are committing during your break as long as it falls within the scope of time permitted and nothing done during this time is against policy.  Something in the back of my mind, "discrimination" against smokers vs. non-smokers, etc. etc., when determining whether time is paid.  Rather not even have that cross the minds of the ee.

     TXHRGuy--is smoking going to be part of the new ADAAA or can the "dependency" of smoking be related back to this?  I am sure I can research it but I thought you may know the answer right off hand or anyone else for that matter.  Thanks.

  • It is my understanding that smoking itself will not qualify but someone with a nicotine addiction that is not able to break the habit (i.e. has been trying many forms of stop smoking programs that are not working) would possibly qualify.  This new ADA is going to be interesting. I think we are going to see many issues that would not have been valid before become eligible for ADA.

  • Are we discriminating against smokers who take their 15-minute assigned morning and afternoon breaks and also choose to take additional breaks to go outside to smoke?

    Wouldn't we be discriminating against nonsmokers if we paid smokers for the extra break time?

    By the way, many exempt personnel are out there smoking with the nonexempts at different times during the day. This issue is complicated!


  • Breaks other than meal periods are usually not governed by States (check your own state regs on this) and are definately not covered by the FLSA. If an organization allows breaks of less than 20 minutes in our state (again, check your own state regs) we must pay an employee for the break. If you have a policy of allowing 2 breaks plus a meal period AND you are allowing your smokers to take additional breaks then you are penalizing your non-smokers and they could also request to take the additional breaks and you would have to allow them to do so with pay. So, my reocmmendation is to tighten up your policy and follow it and not allow additional breaks to your smokers. Tough, but perhaps necessary. Exempt employees are completely different. They are paid a salary independent of hours worked, etc.

     You may also want to think about the liability of allowimg your smokers (or anyone) to go off premise, etc. to smoke or for any other "break" reason, during paid time. If they are injured while being paid, many states would consider them to be working and it could become a Worker's Comp claim (again, check your state regs). We no longer allow employees to leave the premises to smoke and we have stopped all smoking on the premises as well. It is not easy but we also offer a very good Smoking Cessation program. We still have pockets of issues that we are working through.

  • I agree with PEBrown-it is up to the employer to tighten up the policy on smoke breaks.  We allow all employees 10 minutes of paid break time each day-what they do with it is up to them, although we discourage leaving the premises during this time.  We provide both a picnic area as well as a bench by the employee entrance, both with "smoker's post" ashtrays in proximity.  I'm exempt, and I personally choose to take my time 5 minutes in the morning and 5 in the afternoon, while most non-exempts take the 10 minutes in the morning only.  There is only one non-exempt who follows the same schedule as myself, but aside from that and our unpaid meal breaks, you will never see any employees smoking outside of normal breaktime!  Maybe we are a more concientious bunch than others, but the rules are clearly stated and no one seems to have a problem following them.

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