[Congressional Record Volume 145, Number 164 (Thursday, November 18, 1999)]
[Senate]
[Pages S14773-S14774]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     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:


[[Page S14774]]




                                           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.

                          ____________________