Issue Although you maintain a smoke-free workplace, you are an employer that permits your employees to take a series of short smoking breaks that do not exceed 15 minutes. This time seems to be adding up, and you begin to wonder: Are you required to compensate your employees for the time spent smoking?
Answer: Yes. The U.S. Department of Labor’s Wage and Hour division has determined that an employer is required to compensate employees for that time 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 compensable "hours worked."
Smoking breaks are like other "short breaks." 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 proposition that short breaks are common in industry, promote the efficiency of employees, and are customarily treated as work time by employers.
What you should do: Attempts to curtail costs by withholding employee compensation for smoking breaks should be carefully scrutinized before implementation. The FLSA is a comprehensive law and includes a myriad of regulations that require close examination. The employer in this instance thought wisely and, in advance, contacted a Wage & Hour Administrator for advice before taking any action. Thus, the possibility of litigation, and its accompanying cost, was avoided.
Cite: Wage & Hour Opinion Letter No 2007, 99-02 CCH WH ¶32,841.