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Wage Attorney Answers: Can My Job Clock Me Out When I Go Potty?

On Behalf of | Feb 11, 2014 | Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees |

Wage And Hour Lawyers Answers: Do I have to punch out to go to the bathroom? Can my job deduct pay for a smoke break? Should I get paid when I go to bathroom? What should I do if my boss is docking my pay?

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“I’m only paying you when you are actually working for me,” so said one employer when trying to justify his refusal to pay the company’s employees for bathroom breaks or cigarette breaks. Essentially, the boss was saying if you got to go, you need to clock out. Can the employer really do this? Can the boss take away pay for going to the little boy’s or girl’s room? Pursuant to the Fair Labor Standards Act (“FLSA”), the answer is unequivocally no.

Specifically, the FLSA at 29 CFR 785.18  provides: “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.” The FLSA statute or rest breaks cites to Mitchell v. Greinetz, 235 F. 2d 621(1956), in which the Tenth District held that 15 minute breaks were beneficial to both the employee and the employer and should be compensable, but cautioned not push the breaks to long, citing to Darr v. Mutual Life Insurance Company,169 F.2d 262, for the proposition that rest periods of over 25 were not compensable. This is similar to the posting on the website for Department of Labor (“DOL”) , which provides: “you need not count unauthorized extensions of authorized breaks as hours worked when you have expressly and unambiguously advised the employee that the break may only last for a specific length of time and that any extension of the break is contrary to your rules and will be punished.”

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However, specifically advising that short breaks will not be paid, or even a agreement to that effect, will not allow an employer to dock pay or force a punch out for such breaks. As the court in Mitchell critically pointed out: “The fact that these rest periods were adopted by agreement and it was agreed that the employees should receive no pay for such time is not decisive. Waiver of statutory wages by agreement is not permissible.”

This is not simply a bathroom break policy, but pursuant to the DOL, covers all types of short breaks, including smoke breaks, personal telephone calls or visits, to get coffee or soft drinks, and so on.

The above mostly deals with hourly paid employees. The very definition of salary employees is that hours are not supposed to be tracked. Of course, should an employer be stupid enough to dock as salaried employee time for any breaks of any duration, that employee will likely no longer be considered an exempt employee, which means that such employee would then become eligible for overtime pay.

So if you need to go potty, go potty. If your boss docks your pay or forces you to punch out to do so, give our wage and hour attorneys a call.

If you believe that your employer is not paying you all of your lawfully earned wages or for all of your overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your pay dispute or failure to pay overtime situation. If you even think that you may be entitled to pay that is being withheld from you, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio wage attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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