No, not for all of them, says employment law attorney David Monks ( dmonks@fullerlawgroup.co) Fuller Law Group P.C. in San Diego, California.

Federal law recognizes the general rule that breaks of 20 minutes or less must be paid because such breaks are mainly for the employer’s benefit (because the breaks promote employees’ efficiency and welfare).

In this example, however, the breaks primarily benefit the employee. For that reason, they are not compensable. It is important to remember, though, that the employee is entitled to the same number of paid breaks as non-FMLA employees. So, if the company provides, say, one paid 10-minute rest break every four hours of work (that’s the law in California), then an FMLA-covered employee is entitled to at least 20 minutes of paid break time in a full day.

The only breaks that need to be paid are breaks that all employees receive, according to HR Manager Kim Schrader. Otherwise, the breaks fall under FMLA and are for the employee’s benefit, not the employer’s benefit.

For example, if all employees receive two 15-minute breaks then two of the breaks need to be paid, while the rest of the breaks are unpaid and covered through FMLA.

It’s up to the company, says HR Leader Erin ImHof.

Generally, FMLA is not paid. However, the company can pay the employee if it wants, but it needs need to be aware of the precedents that are in place and that are set by such decisions.

It depends on your company’s practices regarding unpaid breaks, says Director of HR Jodi Glitzenstein.

For example, many smokers take breaks each hour — are those breaks unpaid? Do other employees have to take unpaid breaks when they are away from their desks chatting with friends? As long as there is consistency in how you handle breaks, there shouldn’t be a problem.