The U.S. Department of Labor (DOL) Wage and Hour Division recently issued a Field Assistance Bulletin (FAB) advising on certain applications of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) for teleworking employees. The primary focus of the FAB is compensable time, breaks for nursing employees, and FMLA eligibility rules for remote employees. The bulletin, intended for field staff, is a useful tool for employers to ensure their policies are compliant under the current FLSA and FMLA regulations as to their teleworking employees.
Compensable Time for Teleworkers under the FLSA
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 job sites. When it comes to breaks taken during the workday, the FLSA regulations explain that breaks of 20 minutes or less are generally counted as compensable hours worked. Whether teleworking at home or working at an employer's facility, short breaks to get a cup of coffee, stretch their legs, go to the bathroom, etc. will be treated as compensable.
However, bona fide meal breaks (30 minutes or more) and any break longer than 20 minutes in which the employee is using the time for their own purposes and is completely relieved from duty are not hours worked. Employer must count time as hours worked if they know, or have reason to believe, that work is being performed through "reasonable diligence." The DOL suggests that employers may exercise reasonable diligence by establishing a reasonable process for an employee to report uncompensated work time, without preventing an employee's accurate reporting. Such reasonable processes include software on employee's computers that may track emails, keyboard and mouse strokes, browser traffic, and workplace collaboration tools like Slack or Microsoft Teams.
Telework and the FMLA
The FAB also addresses what a "worksite" means for FLSA eligibility purposes when an employee works remotely. The FMLA entitles eligible employees of covered employers to take job-protected leave, which may be unpaid or used concurrently with accrued paid leave for specified family and medical reasons. Employees who telework are eligible for FMLA leave on the same basis as employees who report to their employer's worksite. 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
- worked at a location where the employer has at least 50 employees within 75 miles.
For FMLA eligibility purposes, the employer's personal residence is not a worksite. Under the FMLA, the worksite is the office to which teleworkers report to or from which their assignments are made. Therefore, if 50 employees, including teleworkers, are employed within 75 miles from the employer's worksite (the location to which the employee reports to or from which their assignments are made), the employee meets that FMLA eligibility requirement.
Break Time and Privacy for Nursing Employees
The FLSA requires that employers provide covered employees reasonable break time and a private space for expressing breast milk. Employers must 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. For teleworking employees, the FAB provides the employer must ensure 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 where they are working. While employers cannot deny an employee the right to take a needed break to pump breast milk, they are not obligated to compensate employees for nursing breaks, unless the employer has an established policy of doing so or there is an applicable state or city law requiring compensation.
While the FAB does not alter current regulations, it is a good reminder for employers to review their teleworking policies and ensure proper compliance with the FLSA and FMLA. Employers are advised to treat remote workers similar to those who work onsite for rest and meal break purposes, and to maintain current records of teleworkers' addresses. Should employers have any questions when reviewing their FLSA and FMLA policies as to teleworkers, they are encouraged to contact the authors of this article or any other member of Venable's Labor and Employment Group for guidance.