On February 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Field Assistance Bulletin No. 2023-1 (FAB) to help employers (1) better understand their wage and hour obligations under the Fair Labor Standards Act (FLSA) with regard to their non-exempt teleworkers; and (2) how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework. Although the FAB does not break new ground or change the FLSA or the FMLA and their regulations, it does provide guidance on the DOL’s enforcement positions going forward.
Highly summarized, the FAB confirms that the FLSA and FMLA requirements apply whether non-exempt employees work at a remote work location or a designated work site. Specifically, the FAB emphasizes that short breaks of 20 minutes or less are to be counted 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. According to the FAB, employees often take short breaks to go to the bathroom, get a drink, stretch their bodies, and perform other similar activities. “By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.”
In contrast, the FAB states that meal breaks -- typically 30 minutes or more -- are not counted as compensable hours, provided employees are “completely relieved from duty for the purposes of eating regular meals.” Likewise, breaks that are longer than 20 minutes and permit an employee to use the time for his/her/their own purpose are not counted as hours worked if (and only if) the employee is completely relieved from duty.
To be considered completely relieved from duty, the employee must be informed in advance that they may leave the job and must not have to commence work until a specified time has arrived. Employees are also to be completely relieved from duty when the employer allows employees to choose the hour at which they resume working freely and the non-work time is long enough for the employees to effectively use for their own purposes.
The FAB further confirms that employers must provide nursing employees with reasonable break time to express breast milk. In addition, employers must provide nursing employees “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.” These protections apply even when a nursing employee is working at home or in another remote work setting. The FAB makes clear that the FLSA does not require employers to compensate nursing employees for such breaks. However, if an employer provides compensated breaks to its employees, an employee who uses that break time to pump must be compensated for the break. In addition, employers should check to see if any state or local law may impose additional wage requirements, including potential paid break time to express milk.
Finally, the FAB addresses the FMLA coverage rules. Specifically, it provides that to be eligible for FMLA leave, an employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. For teleworkers, a worksite is defined as the office to which they report or from which their assignments are made.
Jill Waldman represents a broad range of employers in federal and state courts and before various administrative agencies in matters involving all types of employment law claims, including discrimination, harassment ...
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