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Timed bathroom breaks rile worker

A supervisor institutes a policy that limits bathroom

A supervisor institutes a policy that limits bathroom breaks to nine minutes a day, and disciplines workers who need longer. It's intrusive, but is it legal? Photo Credit: iStock

DEAR CARRIE: Our supervisor has instituted a policy that limits bathroom breaks to nine minutes a day. If we exceed that time, we could be written up and given a warning. We have a computer system that allows managers to know when we are idle, in a meeting or on break. So no matter how productive we are, we could still be written up, or possibly fired, if we spend more than nine minutes a day tending to our bathroom needs. I think this policy is petty. Can you tell me if it's legal? -- Potty Rights

DEAR POTTY: Your question marks the first time the Help Wanted column has heard of bathroom timekeepers in the workplace. And I agree that the policy sounds petty -- and shortsighted -- particularly if an employee is a hard worker. How productive can that employee continue to be if he or she routinely decides to sit with a full bladder rather than exceed the company's nine-minute rule?

For a legal opinion, I turned to the local offices of the U.S. Occupational Safety and Health Administration and the U.S. Labor Department.

Both said the policy on its surface wasn't illegal but in certain scenarios could run afoul of the law.

Anthony Ciuffo, OSHA's area director for Long Island, said that whether the company's policy is illegal would depend on factors such as how long employees are required to delay bathroom use and the employer's explanation for such a policy.

He said that any investigation "should examine whether restrictions are general policy or arise only in particular circumstances or with particular supervisors; whether the employer policy recognizes individual medical needs; whether employees have reported adverse health effects, and the frequency with which employees are denied permission to use the toilet facilities."

Before issuing a citation in such a case, OSHA "would have the burden to prove" that the bathroom time limit failed to consider employees' health needs and in fact harmed their health, Ciuffo said.

"The key here is whether or not the employer's bathroom policy is 'reasonable,' " he said. "This can only be determined on a case-by-case basis."

You didn't mention whether your pay is docked when you exceed the bathroom daily limit. Still, it's worth noting what the pay docking rules are for hourly workers when small amounts of time are involved.

"Generally breaks of 20 minutes or less are considered de minimis, meaning that they should not be deducted from work time," said Irv Miljoner, district director at the U.S. Labor Department's Long Island office. "If there is a break of more than 20 minutes, then it can be considered nonwork time."

Though breaks aren't mandated under federal law, he noted that it is widely acknowledged that rest periods, including bathroom breaks, help improve worker performance.

"That kind of work break is considered to be necessary to keep the employee productive," Miljoner said.

That point seems lost on your supervisor.

For more information contact OSHA at 516-334-3344 or the U.S. Labor Department at 516-338-1890.

DEAR CARRIE: I lost my job in May and received a one-year severance package. Do I apply for unemployment benefits now or wait until the severance package expires? -- Now or Later?

DEAR NOW: The New York Labor Department encourages workers to sign up for benefits as soon as they become unemployed. It's worth mentioning that under state regulations that took effect on Jan. 1, you might not qualify for benefits while you receive severance. But at least you will already be in the system when the severance runs out.

For more on breaks and federal law go to http://1.usa.gov/o3pznA.

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