Benefits and Compensation, HR Management & Compliance

Paid Breaks Can’t Offset Other Compensation Due, Court Says

Employers cannot count compensation paid during meal breaks toward overtime pay due to employees, a federal appeals court has ruled.

Meal breaks

The 3rd U.S. Circuit Court of Appeals (which covers Delaware, New Jersey, and Pennsylvania), however, concluded that the Fair Labor Standards Act (FLSA) does not permit employers to take that kind of “credit” (Smiley v. E.I. du Pont de Nemours & Co., No. 14-4583 (3rd Cir., Oct. 7, 2016)).


The employees in the case worked 12-hour shifts at a DuPont plant in Pennsylvania. They were required to spend time before and after their shifts donning and doffing uniforms and protective gear. They also were required to participate in “shift relief,” according to court documents, in which employees from the outgoing shift shared information about the status of work with incoming employees. This all took about 30 to 60 minutes each day and the workers were not paid for this time.

They were, however, paid for breaks, despite the lack of such a federal requirement. They received three paid breaks each shift for a total of 90 minutes—much more than the time spent performing the pre- and post-shift work.

The workers sued, alleging that they should have been paid for that time. The court agreed but DuPont argued that, when considering the pay they received during break times, they were ultimately properly compensated for all hours worked.

The U.S. District Court for the Middle District of Pennsylvania granted DuPont’s motion for summary judgment, finding that the offset was not prohibited by the FLSA.

Appeals Court Weighs In

On appeal, the 3rd Circuit noted that the law does permit employers to use certain compensation as a credit toward overtime due. This includes, for example, a premium paid to employees for working weekends and holidays. (See 29 U.S.C. §207(h) for details.)

A credit for overtime, however, is not mentioned. And the U.S. Department of Labor’s implementing regulations say that unless the FLSA specifically permits an offset, it’s not allowed. “No other types of remuneration for employment may be so credited,” the regulations say at 29 C.F.R. §778.201(c).

DuPont disagreed, arguing that the FLSA’s silence on the issue means that it should be permitted.

The appeals court, however, was not persuaded. “Crediting money already due an employee for some other reason against the wage he is owed is not paying that employee the compensation to which he is entitled by statute,” it said, quoting 9th Circuit precedent. “It is, instead, false and deceptive ‘creative’ bookkeeping that, if tolerated, would frustrate the goals and purposes of the FLSA.”

Kate TornoneKate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for and Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies.

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