The United States Department of Labor recently issued Field Assistance Bulletin No. 2023-1 (FAB), which provides guidance to agency officials on a number of telework issues. The FAB addresses (1) paying workers who telework properly under the Fair Labor Standards Act (FLSA); (2) reasonable break time for nursing employees to express milk while teleworking from their home or another location; and (3) eligibility rules under the Family and Medical Leave Act for employees who telework or work away from an employer’s facility.
If They Make It Quick, You Must Permit (i.e., Pay for the Time)
Per the FAB, regardless of whether the employee is working remotely or on-site, short breaks of 20 minutes or less are counted as compensable hours worked under the FLSA. The DOL explains that employees take short breaks, including bathroom and coffee breaks or breaks just to stretch their legs. Regardless of the reason, the DOL believes that because “short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and [increase] productiv[ity,]” employers must pay the employees for that time.
On the other hand, FAB reiterates that longer breaks, such as meal breaks that tend to last for about 30 minutes or more, are non-compensable. Likewise, breaks longer than 20 minutes (as long as employees can use the time for their own purposes) are not considered hours worked. However, the caveat in the latter scenario is that the employee must be completely relieved from duty for the time to be considered hours not worked. To be completely relieved from duty, the employees must be told in advance that they may leave the job and they will not have to commence work until a specified hour has arrived. An employee may also be completely relieved from duty when the employer allows the employees to freely choose the hour at which they resume working and the time is long enough for the employees to effectively use for their own purposes.
Pump, Pump, Pump It Up
Under the FLSA, an employer must provide covered employees with a reasonable break time to express breast milk, along with a place (other than a bathroom) that is shielded from view and intrusion from others. The FAB makes clear this obligation applies when an employee is teleworking from their home or another location.
The FAB confirmed employers are not required under the FLSA to compensate nursing employees for breaks taken for the purpose of expressing milk. However, if an employee is pumping while working (which may include telephone or Zoom calls) or pumps during an otherwise paid break, the employer, nonetheless, must “pump, pump, pump it up” and pay the employee for that time.
Remote Work and FMLA
The FAB addressed FMLA eligibility requirements and its application to remote employees. To be eligible for FMLA leave, an employee must have worked for the employer for at least 12 months, worked at least 1,250 hours within the last 12 months, and work at a location where the employer has at least 50 employees within 75 miles.
For the 12 months of work requirement, just look to see how long the employee has been on your payroll (but remember the months do not need to be consecutive). On the 1,250 hours requirement, use the principles under the FLSA for determining compensable hours of work. If accurate records are not kept, the employer has the burden of showing that the employee has not met the hours-of-service requirement. Not too hard to determine, right? Right.
However, an employer may run into an issue in determining whether a telework employee meets the FMLA’s worksite requirement. The FAB provides an in-depth explanation as to how teleworkers can meet the work location requirement. The DOL clarified that for FMLA eligibility purposes, an employee’s personal residence is not a worksite. However, 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. For example, an employee may work for a department store as a customer service representative. However, due to a weather emergency, the store is temporarily closed and everyone except essential workers are sent home. The employee goes home and continues to perform her work duties during the period the store is temporarily closed. For FMLA eligibility purposes, the store remains the employee’s worksite. Similarly, if you have remote workers whose work assignments come out of the headquarters, you count the employees in the headquarters with the remote workers in determining whether the site has 50 employees within 75 miles.
Although the FAB is directed towards agency officials, it provides employers with insight as to how the DOL will interpret and apply existing laws and regulations to common remote-work scenarios. Considering the guidance, as a cautious employer you should:
- Ensure that you have meticulous timekeeping mechanisms for employees, especially teleworking employees. The timekeeping systems should address breaks.
- Think about remote nursing mothers and how they can take and record pumping breaks. You should also check the state and local laws on nursing mother breaks because your remote worker may be in a state that provides for paid or additional leave.
- Doublecheck how you are counting for the “50 employees within 75 miles” requirement under the FMLA.
- Ensure that your human resources department is aware of and has policies aligned with the FAB guidance.