Restroom access and pay deductions at call centers

February 27, 2006

Elizabeth Khoury

[Recipient address omitted]

Dear Ms. Khoury:

This is in response to the February 2, 2006 e-mail you sent to me and the February 10, 2006 e-mail you sent to Helen Rogers of my staff. This letter constitutes OSHA's interpretation only of the situation discussed and may not be applicable to any question or situation not delineated within your letter. You had specific questions concerning restroom usage at call centers in Texas where you were once employed.

Question from your first e-mail: From my experience and that of others, it is widespread policy for call centers to require employees to take restroom breaks on their own time. More specifically, employees are "clocked out" via their computer or phone mechanisms to use the restroom.

After reading [OSHA's] interpretation of April 23, 2003 — Reasonable access to toilet facilities; citation analysis for failure to allow access to toilet facilities — I am curious to know if this is binding on call centers. If I understand the interpretation correctly, you may have written off call centers that do not have any OSHA recourse or Wage & Hour remedies because their hourly wages exceed the Fair Labor Standards Act minimum wage and they don't work overtime. Are call center policies that follow the system I discussed above lawful?

Question from your second e-mail: Would OSHA deem it a violation if the employer instead of docking pay imposed an admission fee on the use of toilets during non-scheduled breaks and the fee was calibrated to equal the employee's wage for the number of minutes she was in the bathroom?

Response: If the employer does not provide reasonable access to toilet facilities when the employees need to use them, the employer would be in violation of OSHA's general industry sanitation standard (29 Code of Federal Regulations §1910.141(c)(1)(i)). OSHA addressed the issue of employee access to toilet facilities in a memorandum to OSHA's Regional Administrators dated April 6, 1998 (copy enclosed). This memorandum is a public document and is available on OSHA's website www.osha.gov.

Some of the issues raised in your questions (restroom breaks on own time, employer docking pay, or employer imposing an admission fee to use toilets during non-scheduled breaks) cross over into labor management relations, which is an area that OSHA does not regulate. Certainly any restriction that the employer imposes on bathroom use, such as the ones you describe, would have to be reviewed by an OSHA compliance officer on a case by case basis to determine if it is reasonable and does not interfere with the requirement that employees be allowed to use toilet facilities when they need to do so.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850.

Sincerely,

Richard E. Fairfax, Director

Directorate of Enforcement Programs

Enclosure