The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“NOMINATION OF T. MICHAEL KERR” mentioning the U.S. Dept of Labor was published in the Senate section on pages S14773-S14774 on Nov. 18, 1999.
The publication is reproduced in full below:
NOMINATION OF T. MICHAEL KERR
Mr. NICKLES. Mr. President, I want to make a few comments regarding the nomination of T. Michael Kerr to be Administrator of the Wage and Hour Division of the Department of Labor. I held up this nomination until I could secure an agreement regarding the issue of unauthorized break time from the Secretary of Labor, outlined in a letter I will submit for the Record.
The need for this agreement with the Secretary was precipitated by a case pending before the Wage and Hour Division regarding an employee exceeding the allotted time for a rest/period break, and an employer deducting from the employee's compensation the time taken in excess of the break time.
The Fair Labor Standards Act does not require employers to provide its employees with a rest period/breaks. Nevertheless, many employers offer short breaks to their employees. Although the duration of a voluntary break is up to the employer, the breaks generally run between 5 and 20 minutes.
The Department of Labor does recognize that employers have the flexibility to determine the number of breaks and the length of breaks that they offer to their employees. The Department of Labor has taken the position that when an employer allows its employees to take a short break and an employee abuses the break time policy by exceeding the time that the employer allotted for the break, the employer must still compensate the employee for the first 20 minutes of the break.
Further, the Department of Labor has taken the position that if an employer offers its employees a compensable break of less than 20 minutes in duration, and an employee's break time exceeds the time that the employer allotted for the break, then the employer's only recourse against the employee is disciplinary action (such as a reprimand or termination), or elimination of the rest period.
Under the agreement I reached with the Secretary, the Department of Labor will conduct a complete review of its policy regarding unauthorized breaks. That review will be completed by February 1, 2000. Upon completion of the review, the Department of Labor will submit its findings in writing to the Chairman and Ranking Members of the relevant committees in the House and the Senate. The review will include consideration of what outcome is in the best interest of the employee if the employee exceeds the allotted time of a rest period/break: disciplinary action against the employee (such as a reprimand or termination); elimination of the rest period/break option; or deductions of compensation for the time in excess of the allotted break time.
Also, the Secretary committed the Department of Labor will assure that the resolution of any cases in which unauthorized break times are at issue, will be consistent with the findings in their review.
This is an important review of what is clearly an outdated policy. I look forward to the outcome of their review, and I thank the staff at the Department of Labor for working in good faith with my office, and the Secretary for working to a quick resolution of this issue so this nomination can move forward.
I ask unanimous consent that a letter from the Secretary of Labor be printed in the Record.
There being no objection, the letter was ordered to be printed in the Record, as follows:
Secretary of Labor,
Washington, DC, November 18, 1999.Hon. Don Nickles,U.S. Senate,Washington, DC.
Dear Senator Nickles: This is a follow-up to the meeting of our respective staffs yesterday. While the Department of Labor recognizes that employers have the flexibility to determine the number and length of breaks they offer to their employees, the Wage and Hour Division has taken the position that if an employer offers a break of less than 20 minutes in duration, the time the employee spends on that break typically is compensable hours worked under the Fair Labor Standards Act.
Most of the Wage and Hour Opinion Letters that address this issue involve authorized breaks. However, on several occasions, the Wage and Hour Administrator has stated that short unauthorized breaks may also count as hours worked. Wage and Hour has taken the position that if an employee exceeds the time allotted for an authorized break, an employer may take a disciplinary action against the employee, or the employer may eliminate the option for rest periods/breaks.
I am committing the Wage and Hour Division and the Solicitor's Office to carefully review our policy with respect to the compensability of unauthorized break time under the FLSA. Our review will specifically include those instances in which employees exceed the time allowed for a rest break. We will also consider what outcome is in the best interests of the employee if the employee exceeds the allotted time for a rest period/break, including the option of deductions of compensation for the time taken in excess of the allotted break time.
As part of our review, we will consider the statutory text, relevant legislative history and regulatory material, case law, previous Wage and Hour Opinion Letters, changing technology and any information that your office or a member of the public may provide. We will complete our review of this matter by February 1, 2000, and transmit our conclusions and supporting rationale in writing to the Chairman and Ranking Members of the relevant committees in the House and the Senate.
It is important that all officials of the Wage and Hour Division interpret and apply the law in a uniform manner, and so advise the public. I will instruct the Wage and Hour Division to assure that the resolution of any cases in which unauthorized break time are at issue is consistent with the outcome we reach in our overall review.
I very much appreciate your interest in these important questions.
Sincerely,Alexis M. Herman.
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