This is not the first time that Spitz has paid a visit to the porcelain throne to consider the law’s response to nature’s call. However there’s never an inappropriate time to use the head (on our shoulders!) and reconsider this issue.
Does my employer have to make a deposit in my bank account while I’m making a deposit on the pot?
Number 1 Employment Lawyer Answer:
The Fair Labor Standards Act (“FLSA”) sets the guidelines under Federal law for what your employer must pay you for. While the Department of Labor will emphasize that the FLSA does not require paid meal or rest breaks, where those breaks are offered by an employer, they are offered subject to the FLSA’s rules. See also Secretary US DOL v. American Future Systems, Inc., 873 F. 3d 420, 425 (3rd. Cir 2017).
The Code of Federal Regulations interprets the FLSA as requiring payment for short rest periods, whether spent on the can or not:
29 C.F.R. § 785.18 states:
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. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945)).
Indeed, as the Code states, these periods can be all too common – particularly when an urgent need arises, and all the stalls are taken. This interpretation has been made more concrete by the Third Circuit, which bluntly states “the Fair Labor Standards Act does require employers to compensate employees for all rest breaks of twenty minutes or less.” American Future Systems, Inc., 873 F. 3d 420 at 423. The Third Circuit goes on to hold that “breaks of twenty minutes or less are insufficient to allow for anything other than the kind of activity (or inactivity) that, by definition, primarily benefits the employer.” Id. at 430. (Next time I run into my employer in the loo, I’ll have to note that they are receiving the primary benefit of my time there – I am certain that will be well appreciated!)
Best Employment Lawyer Interjection – Do NOT do what I just suggested – please!
Beyond this, however, a 1996 Department of Labor Opinion Letter on the FLSA emphasizes the timeless quality of the on-the clock dunny break:
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 the children, attending to a medical necessity, a cigarette break, etc. The Department 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. . . .
Lillehagen v. Alorica, Inc., Dist. Court, CD California 2014 quoting 1996 DOL Opinion Letter, 1996 WL 1005233, at *1
But what if duty calls for more than 20 minutes?
Number 2 Employment Lawyer Answer:
The Wage and Hour Division of the Department of Labor has weighed on extended break times as follows:
(c) Unauthorized extensions of authorized breaks are not counted as hours worked for an employee when the employer had expressly and unambiguously communicated to the employee that:
- the authorized break may only last for a specific length of time;
- any extension of such break is contrary to the employer’s rules; and
- any extension of such a break will be punished.
As such, an extended stay in the water closet may not be compensable assuming your employer has clearly communicated its policies on the break times you are entitled to. As one federal court has said, “It is not objectively reasonable to believe that one should be paid for eight hours of work while spending a third to a quarter of that time on personal breaks.” Spiteri v. AT & T Holdings, Inc., 40 F. Supp. 3d 869, 876 (ED Michigan 2014). To the extent that you can, it is advisable that you keep your potty time reasonable.
Health and Safety
The CDC has stated that “Insufficient bathroom breaks are an important health and safety consideration for many jobs, such as those involving patient care or specific production schedules.” Moreover, “When people get too few bathroom breaks, they may be at risk for urinary tract infections and incontinence, as well as other bladder, bowel, and kidney problems.” The CDC has even suggested that holding it in can cause danger to others as well as yourself “Research shows that holding a full bladder makes people hurry through their work and pay less attention — meaning that workers distracted by a full bladder may be more likely to injure themselves or others.” In essence, a similar mutual benefit argument can be made for purposes of public health and safety as the FLSA makes for short breaks – they leave everyone better off.
The Occupational Health and Safety Administration (“OSHA”) mandates in 29 CFR § 1910.141(c) that employers provide “toilet facilities, in toilet rooms separate for each sex, according to a set schedule, with one toilet for the first 15 employees, another for up to 35 employees, another after that, and so on. OSHA has interpreted this standard to require “prompt access to sanitary facilities” and further requires that “Restrictions on access must be reasonable, and may not cause extended delays.”
An example of a reasonable delay is provided where “sufficient relief workers” are on hand to step in to an employee’s place on an assembly line. Should an employee bring a complaint to OSHA based on availability of restrooms and restrictions on toilet use, OSHA will consider “the nature of the restriction, including the length of time that employees are required to delay bathroom use, and the employer’s explanation for the restriction […] whether restrictions are general policy or arise only in particular circumstances or with particular supervisors, whether the employer policy recognizes individual medical needs, whether employees have reported adverse health effects, and the frequency with which employees are denied permission to use the toilet facilities.” OSHA has further issued a publication advising, but not mandating, that transgender employees be allowed to use the restroom that corresponds with their gender identity, and not be forced into restrooms of another gender identity or restricted to single occupancy unisex facilities.
Depending on the severity of the conduct in question, denial of suitable bathroom time may be fruitful ground for an OSHA investigation. Alternatively, certain severe cases may rise to the level of a public policy claim, if the employer’s conduct places these public policies in question.
Commode Accommodations based on Protected Class
Workers who are older, pregnant, or who have certain other medical conditions might need to use the bathroom more often than other workers. Employees are protected from discrimination based on their membership in a protected class. However, such protections will not absolve employees of taking actions that frustrate the legitimate business purposes of their employer. Further, to the extent that some condition requiring frequent bathroom breaks is treated as a disability, the way in which an employer meets the employee’s medical may not be exactly what the employee wishes, and may not necessarily correlate to unlimited paid potty time.
Spiteri, cited above, states that “Common sense and the law demonstrate that Plaintiff’s request that he be permitted to take unlimited personal breaks throughout the day, not make that time up and still be paid for an eight-hour workday is not a request for a reasonable accommodation.” Spiteri at 879-880. Spiteri reasons by analogy to the unpaid break time provided to nursing mothers by 75 FR 80073 and the EEOC’s guidance on unpaid leave for diabetics, reproduced below:
Example 6: A manufacturing plant requires employees to work an eight-hour shift with just a one-hour break for lunch. An employee with diabetes needs to eat several times a day to keep his blood sugar levels from dropping too low. Absent undue hardship, the employer could accommodate the employee by allowing him to take two 15-minute breaks each day and letting him make up the time by coming to work 15 minutes earlier and staying 15 minutes later.
In essence, an employer may have to provide you with all the time you need to think and stink, assuming that it constitutes a reasonable accommodation, but they don’t necessarily need to pay you to do it.
Of course, time isn’t the only consideration when it comes to workplace bathroom usage. In July 21, 2014, President Barack Obama’s issued Executive Order 13672 to include sexual orientation and gender identity as classes protected by the earlier EO 11246. EO 11246 governs federal contracts for mor than $10,000.00, and is enforced by the Office of Federal Contract Compliance Programs (“OFCCP”), The OFCCP’s final rule implementing EO 13672 updates § 60–1.8 Segregated facilities to provide that:
To comply with its obligations under the Order, a contractor must ensure that facilities provided for employees are provided in such a manner that segregation on the basis of […] sex, sexual orientation, gender identity […]cannot result. The contractor may neither require such segregated use by written or oral policies nor tolerate such use by employee custom. […]The term ‘‘facilities,’’ as used in this section, means […] restrooms, wash rooms, locker rooms, and other storage or dressing areas, […] Provided, That separate or single-user restrooms and necessary dressing or sleeping areas shall be provided to assure privacy between the sexes
As such, federal contractors are required to allow transgendered individuals to use the bathroom that coincides with their gender identity.
Special Situations:
One special situation that can muddy the waters is where an employee is working from home, or lives on the employer’s premises. In this situation, Federal Regulations provide as follows:
29 CFR § 785.23 Employees residing on employer’s premises or working at home.
An employee who resides on his employer’s premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her own home. (Skelly Oil Co. v. Jackson, 194 Okla. 183, 148 P. 2d 182 (Okla. Sup. Ct. 1944; Thompson v. Loring Oil Co., 50 F. Supp. 213 (W.D. La. 1943).)
Leaving aside whether “complete freedom from all duties” can accurately describe the time when duty calls, it is clear that restroom breaks while on an employer’s premises would be evaluated under the normal rules applicable to such situations. To provide more clarity, 29 C.F.R. § 785.16(a) states:
Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.
That definition may be as clear as the bowl after an over 20 minute unauthorized extension of an authorized break, but essentially boil down to whether the employee is truly free to do their own business during the time in question.
Another special situation is work related travel. 29 CFR § 785.41 states that:
Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.
As such, particularly given the specific exclusion of meals and sleep from compensable time, it can be assumed that ordinary rules regarding compensation for rest breaks apply on the road.
Finally, if you work in an agricultural labor camp, O.A.C. 3701-33-07 dictates the number and nature of the toilet facilities your employer must provide in language mirroring OSHA’s more general regulations. This code requires at least one toilet for each fifteen occupants (and one urinal for each twenty-five males), separate toilets for men and women, lighting and ventilation at all times of day, sufficient toilet paper, and partitions between toilets “at least fifty-four inches high and not more than twelve inches off the floor.”
Conclusion
The laws governing toilet time are complex and often undeveloped. If your employer is treating you like the kids you just dropped off at the pool, it behooves you to get in touch with the best employment and wage and hour attorneys you can – Spitz, the Employee’s Law Firm! We’ll give you the advise you need, so yo can focus on taking the Browns to the Super Bowl.
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