Offering employees a flexible workday with unlimited, yet unpaid, time off, can be a beneficial policy for employers and employees. In such circumstances, employees have the freedom to take breaks whenever needed for any reason, and employers do not have to compensate employees for time not spent performing services for the employer. However, in Secretary United States Department of Labor v. American Future Systems, 873 F.3d 420 (2017), the Third Circuit held that employers must compensate employees for short break periods as hours worked, regardless of what these breaks are called.

The Employer’s “Flex Time” Policy