Workers are entitled to be paid for breaks of 20 minutes or less under the Fair Labor Standards Act, says a federal appeals court, in affirming a lower court ruling.

Malvern, Pennsylvania-based American Future Systems Inc., which does business as Progressive Business Publications, a firm that publishes and distributes business publications and sells them through its sales representatives, pays its salespeople an hourly wage and bonuses based on their number of sales per hour while they are logged onto the computer at their workstations, according to Friday’s ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia in Secretary United States Department of Labor vs. American Future Systems Inc. et al.

In 2009, Progressive introduced a policy that said employees are only paid for time they are logged on, and does not pay them if they are logged off for more than 90 seconds, according to the ruling.

The Labor Secretary filed suit against the company alleging in part that the company and its owner had violated the FLSA by failing to pay the federal minimum wage to employees subject to this policy.

The U.S. District Court in Philadelphia ruled in favor of the Labor Department on this issue, which a three-judge appeals court panel affirmed on appeal.

“Progressive first argues that under its policy because employees are basically free to do anything they choose and can even leave the job site when logged off of their computers, the time when employees are logged off does not constitute ‘work,’ and therefore the FLSA does not apply. We disagree,” said the ruling.

“It is well established that that some breaks constitute ‘hours worked’ under the FLSA. Thus, hours worked is not limited to the time an employee actually performs his or her job duties,” said the ruling.

“The FLSA does not require employers to provide their employees with breaks. However, if an employer chooses to provide short breaks of five to twenty minutes, the employer is required to compensate employees for such breaks as hours worked,” said the ruling.

It adds, Progressive’s policy “forces employees to choose between such basic necessities as going to the bathroom, or getting paid unless the employee can sprint from computer to bathroom, relieve him or herself while there, and then sprint back to his computer in less than ninety seconds.”

But, it adds, if the employee needs more than 90 seconds to do this, he will not be paid for the time away from his computer. “That result is absolutely contrary to the FLSA,” said the ruling, in affirming the lower court ruling.

In an issue that has created a split among federal appeals courts, in July the 9th U.S. Circuit Court of Appeals in San Francisco overturned a lower court ruling and held that mortgage underwriters are entitled to overtime.