The DOL Issues Guidance on Telework
By Maya Foster - Shawe Rosenthal LLP
February 16, 2023
On February 9, 2023, the U.S. Department of Labor issued guidance on how to comply with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) as to teleworking employees. Although intended for DOL staff, the Field Assistance Bulletin (FAB) provides employers with insight into the DOL’s position on issues arising under these two laws, including: (1) compensation under the FLSA, (2) protections under the FLSA that provide reasonable break time for nursing employees, and (3) eligibility rules for teleworking employees under the FMLA.
The key provisions of the FAB are as follows:
Telework and the Fair Labor Standards Act (FLSA)
As many of you know, the FLSA requires covered employers to track and pay nonexempt employees for all hours worked, including work performed in their home or away from their employer’s premises. Generally, an employee’s workday begins with their first “principal activity” (i.e. the activity they are hired to perform) and ends when the employee concludes their last principal activity. Of note, “hours worked,” is not limited to active working hours, but may include time spent waiting or on a break.
Break time. Employees often take breaks throughout the day – perhaps to use the restroom, stretch their legs, or get a cup of coffee. As the DOL notes, break time used to reset and regain focus positively benefits employers and may even reduce employee fatigue. So, breaks are a good thing! Remember, however, under the FLSA, breaks of twenty (20) minutes or less must be paid.
If the break is long enough to permit the employee to use the time for their own purpose, and relieves them from duty, then the break is not compensable. For employees to be completely relieved from duty, they must receive advance notice of the start and stop time of their break or, if the employee is free to choose when to take their break, the time must be long enough for the employee to effectively use the time freely.
As the DOL has always said, bona fide meal breaks (of 30 minutes or more) are considered long breaks and need not be paid. But the DOL also now expressly states that breaks of more than 20 minutes also need not be paid, as long as the employee is free to use the time as they wish. (This last point is tremendously exciting for employment lawyers – up until this point, the DOL has been clear that breaks of 20 minutes or less are paid, and meal breaks of 30 minutes or more are unpaid, but they have been silent on that 20-30 minute interval! We’ve always struggled with what to do with breaks from 20-30 minutes long…).
The DOL provides a useful example of how these break rules work:
Employee B works from home and is allowed flexibility to set their own schedule. Employee B starts work at 7:00 a.m., takes a one-hour break from 8:00 a.m. to 9:00 a.m. to get their children ready for school, and resumes work at 9:00 a.m. The period between 8:00 a.m. and 9:00 a.m. is not work time under the FLSA because Employee B is completely relieved from duty, chooses when to resume work, and can effectively use the time for their own purposes.
The requirements under the FLSA for short v. long breaks apply whether the employee is working in the office, at home, or in another location away from the employer’s worksite. Employers must compensate employees for all reported hours of work (even for time not requested by the employer, as long as the employer knows about it) unless the employee takes a long break (i.e. more than 20 minutes!) for personal reasons.
Break Time and Location for Pumping Breast Milk. Under the FLSA, covered employees are entitled to reasonable break time and a private location in which to pump breast milk for a nursing child up to one (1) year after the child’s birth. This is required whether the employee is at the employer’s worksite, teleworking from home, or working at an offsite location.
Previously, only non-exempt employees were entitled to these protections. However, the brand new “Providing Urgent Maternal Protections for Nursing Mothers” (PUMP) Act extended this to exempt employees, with exceptions for certain employees of air carriers, rail carriers, and motorcoach service operators, as well as for employers of less than 50 employees if its requirements would impose an undue hardship.
Although the frequency and duration of lactation breaks may vary, employers are not required to compensate nursing employees for such breaks. However, if the employer provides paid breaks generally to its employees, then the nursing employee must be allowed to use such paid breaks to pump. If more time is required, whether an extension of a normal break or additional breaks, this need not be paid. If the employee is not completely relieved from duty during the break (e.g., the employee attends a video meeting or conference call—even with their camera off) then the employee must be paid for the break time (since it is not really a break at all).
As for the location, employers must provide a place, other than a bathroom, that is shielded from view (including from any video system, including a computer or security camera, or web conferencing platform) and free from intrusion from coworkers and the public.
Telework and the Family and Medical Leave Act (FMLA)
You may also remember that the Family and Medical Leave Act (FMLA) permits eligible employees to take job-protected leave (unpaid or concurrently with paid leave) for specified family and medical reasons. Employers are required to maintain the employee’s group healthcare coverage throughout the protected leave and restore the employee to the same or an equivalent position, with equivalent employment benefits, pay, and other conditions of employment upon their return.
To be eligible for FMLA leave, an employee: (1) must work for their employer for at least twelve (12) months (which may be non-consecutive); (2) have at least 1,250 hours of service during the 12 months preceding the leave; and (3) work at a location where the employer has a least fifty (50) employees within a seventy-five (75) mile radius. The first and second FMLA eligibility requirements are determined as of the start date of the employee’s FMLA leave. The third eligibility requirement is determined when the employee gives notice of the need for leave.
Hours worked. For employees who telework, the 1,250 hours of service requirement is measured by hours actually worked under the FLSA. Employers should keep accurate records of each employee’s hours worked in order to be able to establish whether the employee has met – or not – the hours of service requirement under the FMLA.
Employee’s Worksite. For FMLA purposes, when an employee teleworks from home or elsewhere outside the office, their worksite is the office to which they report or from which they receive their assignments. Employees who telework are included in the count of employees at the office to which they report, in order to determine whether there are 50 employees within a 75-mile radius.
Again, the DOL provides a useful example:
Employee B works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee B’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis by the manager who works at the company headquarters. Employee B’s worksite, for FMLA eligibility determination, is the company’s headquarters. The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee B’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. Thus, the employee is considered employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite even though she does not work within 75 miles of the company headquarters.
• Under the FLSA, employers must compensate teleworking employees for all hours worked, including short rest breaks lasting up to 20 minutes.
• Employers are not required to pay for breaks lasting more than 20 minutes, including meal breaks, as long as the employee is completely relieved from duty and able to use that time for their own purposes.
• The requirements under the FLSA for short and long breaks apply whether the employee is working in the office, at home, or in another location away from the employer’s worksite.
• Employers must provide lactation breaks and privacy to nursing employees for the 12 months following birth, including for teleworking employees. Employees may use existing paid breaks for this purpose, but if the employee needs more time beyond the paid break (if any), the new/extended/additional break time may be unpaid.
• Employers should implement reasonable reporting procedures for break times, so they stay in the know about the employee’s working hours.
• For FMLA purposes, an employee’s residence is not a worksite. Instead, an employee’s worksite is the office to which they report or from which they receive their assignments.
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