The United States Department of Labor (USDOL) issued a Field Assistance Bulletin (FAB) to internal USDOL staff on November 9, 2023 which clarified the application of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to remote work situations. The FAB provides guidance to Wage and Hour Division (WHD) field staff on topics including: proper pay under the FLSA for remote workers, application of the FLSA to nursing mother break time while remote working, and application of eligibility rules under the FMLA when employees telework or work away from an employer’s facility. The Bureau of Labor Statistics estimates that one in five private sector jobs include telework at least some of the time. This new enforcement guidance serves as a reminder to employers that they cannot neglect compliance with federal and state laws even though employees may not be working in the physical workplace.
I. Application of FLSA to Remote Work
a. “Hours Worked”
The FAB clarifies that the FLSA requires covered employers to pay nonexempt employees for all hours worked, including work performed in their home or otherwise away from the employer’s premises or jobsite. See 29 C.F.R. § 785.11-.12. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked regardless whether the employee works at the employer’s location or teleworks from another location. 29 C.F.R. § 785.11-.12.
An employer may satisfy its obligation to monitor employees’ unscheduled hours of work by providing a reasonable reporting procedure for non-scheduled time and then paying employees for all reported hours of work, even hours not requested by the employer.
b. Break Time
When employees take short breaks of 20 minutes or less, the employer must treat such breaks as compensable hours worked regardless of whether the employee works from home, the employer’s worksite, or some other location that is not controlled by the employer.
However, bona fide meal breaks and breaks of longer than 20 minutes during which the employee is completely relieved from duty are not hours worked under the FLSA. The FAB also clarifies that time may also be non-compensable if the employee is completely relieved from duty. For example, when the employer allows the employee to freely choose the hour at which they stop and resume working, and if the time is long enough for the employee to effectively use for their own purposes. The Guidance provides telework examples, including a mother that is given flexibility to set her own work schedule. She begins work at 7:00 a.m. and takes a break from 8:00 to 9:00 a.m. to get her kids ready for school. That one hour period would not be considered “hours worked” under the FLSA because she is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for her own purposes.
c. Nursing Mothers
The FAB also reiterates that the FLSA requires that employers provide covered employees “reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. § 218d(a). The Guidance states that these protections apply at the employee’s worksite, including when an employee is teleworking from their home or another location. For purposes of telework, the Guidance applies the “Shielded from view” provision of the FLSA to include “ensuring that an employee is free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk regardless of the location they are working from.” The Guidance provides telework examples including: If a remote employee chooses to attend a video meeting or conference call – even if off camera – generally the employee in that case is not relieved from duty and, therefore, must be paid for that time while nursing.
The Guidance further reiterates that an employer cannot deny a nursing mother the right to take a needed break, that breaks are not required to be compensated – unless the employer provides compensated break time (or breaks less than 20 minutes). If an employee is not completely relieved from duty during these breaks, the time must be compensated as work time.
II. Telework and the FMLA
The FAB also clarified that employees who telework are eligible for FMLA leave on the same basis as employees who report to the worksite to perform their job. Employees are eligible for FMLA leave when they have worked for the employer for at least 12 months; have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and work at a location where the employer has at least 50 employees within 75 miles. 29 C.F.R. § 825.110(a).
For purposes of determining the applicability of the FMLA based on number of employees within the 75-mile radius, the Guidance states that for FMLA eligibility purposes, the employee’s personal residence is not a worksite. See 29 C.F.R. § 825.111(a)(2). When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.
Conclusion
It appears that telework is here to stay, for at least some time, following the COVID pandemic. Employers must ensure that they remain cognizant of relevant state and federal laws when managing a remote workforce. As the USDOL Guidance clarifies, the laws still apply and even may apply in some unforeseen ways due to the nature of telework.
If you need assistance drafting telework policies or have issues or concerns with any other aspect of managing a remote workforce, contact a member of the Najjar Employment Law Group, P.C.
© February 10, 2023
