On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin addressing several vexing questions pertaining to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers. Field Assistance Bulletins do not have the effect of law, but nonetheless are important statements of DOL policy and statutory interpretation.
The FLSA requires payment of at least the federal minimum wage, payment to non-exempt employees for all hours worked, and overtime compensation when applicable. Starting with the premise that employers must pay wages for all hours actually worked by nonexempt employees, not merely hours during their regularly scheduled shifts, and may only treat breaks as non-compensable if they are longer than 20 minutes and free from all interruption, the DOL underscores in the Bulletin that these principles apply when work is performed in a non-exempt employee’s home or otherwise away from the employer’s premises. For instance, a non-exempt employee working from home may still take short breaks to use the restroom, refill coffee, or stretch their legs, just as they would if working at the employer’s premises, and must be compensated for these short breaks.
The Bulletin acknowledges that managing bona fide meal periods may be more challenging when a non-exempt employee is working from home. During these longer unpaid periods, the non-exempt employee must be completely relieved from duty and free to effectively use the time for their own purposes. Employers and employees may agree to a specific period of time during the workday that will be unpaid and may be used by the employee for any purpose. For instance, the employer may instruct that, from 12:00 p.m. to 1:00 p.m. each day, the employee may leave the job (in this case, the remote worksite), should not perform any work during the hour, and not commence work again until the meal period is complete. If these limits are adhered to by both parties, this time may be uncompensated. The same is true if the parties agree to longer stretches of unpaid time during the workday. For example, if an employee begins their remote workday at 6 a.m. but agrees with the employer that they will be free from all work between 7 a.m. and 9 a.m. to prepare breakfast and drive their children to school, and this time is uninterrupted, the two-hour block of time may be unpaid.
However, if an employer knows or has reason to believe that work is being performed by a non-exempt worker, even while remotely, outside of their regular shifts or during their scheduled break time, the time must be counted as hours worked. The DOL reminds employers “to exercise reasonable diligence to acquire knowledge regarding 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.” Employers must be vigilant for signs that non-exempt, remote workers are routinely performing work outside of their regularly scheduled shift, such as repeatedly sending or responding to early morning or late-night emails or being continuously available during hours designated as meal periods.
The FLSA also requires employers to provide reasonable break time to employees to express breast milk for such employee’s nursing child for one year after the child’s birth, and a private place “shielded from view and free from intrusion from coworkers and the public” for such purpose. The Bulletin emphasizes that the nursing breaktime requirement applies when employees work remotely. If an employee is working at an off-site location (such as a client site), the employer must arrange for an appropriate place for the employee to express breastmilk. Similarly, if employers use technological features to monitor or communicate with remote employees, a nursing employee must be free from observation by an employer-provided or -required video system (e.g., computer camera, security camera, web conferencing platform) when they are expressing breastmilk, regardless of work location. Furthermore, if employees are required to continue working through nursing breaks, such as being required to remain on a videoconference but off-camera while nursing/expressing breastmilk, the employee has not been relieved from duty during such time and therefore, if non-exempt, must be paid for the nursing time.
The FMLA provides eligible employees up to 12, or in some cases 26, workweeks of job-protected leave for covered reasons. Eligible employees are those who have worked for the employer for at least one year and who have worked at least 1,250 hours or more in the 12 months preceding the leave of absence, and who work at a worksite where 50 or more employees are employed within a 75-mile radius. The Bulletin points out that, for FMLA eligibility purposes, a remote employee’s personal residence is not a worksite. If an employee works from home or teleworks from another remote site, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. In other words, if an otherwise eligible employee usually reports to and receives her assignments from a Phoenix, Arizona office of the employer at which more than 50 employees regularly work, but the employee is working remotely from her home in Tucson, Arizona (100+ miles from Phoenix), she nonetheless meets the FMLA eligibility requirement notwithstanding her physical location.
The Bulletin reinforces the importance of accurately tracking hours worked by remote employees for FMLA eligibility purposes, as well as for wage payment reasons. The 1,250-hour requirement for FMLA eligibility includes hours worked at an employer’s worksite, from home, while teleworking, or any combination of these locations. Failing accurately to track hours worked not only may deprive a non-exempt employee of wages, but also may lead to difficulty determining FMLA eligibility. Although employers are not required to exhaust every means available to determine unreported hours of work (a topic the DOL addressed early in the pandemic in a different Field Assistance Bulletin), employers should take reasonable steps to prohibit unreported work hours, to pay for reported hours worked outside of employees’ regular shifts, and to train managers not to discourage employees from reporting remote working time.