An employer has a flexible time policy that it applies to its sales representatives, who work online

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An employer has a “flexible time” policy that it applies to its sales representatives, who work online at the company’s office. Sales reps are permitted to log off their computers and take breaks “at any time, for any reason, and for any duration” during the work day. However, employees are paid for only the time that they are at their work stations and logged on to their computers. The only exception is for “breaks” of ninety seconds or less. Some employees sued under the FLSA, claiming that they are entitled to pay for breaks taken that extend beyond ninety seconds. The employer maintains that since the “flexible time” policy allows employees to decide how many breaks they take and for how long, it should not have to pay employees for this non-work time. Does this employer’s “flexible time” policy violate the FLSA? Why or why not? (See DOL v. Am Future Sys., 873 F.3d 420 [3d Cir. 2017].)

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