Earlier this month, the Wage and Hour Division of the US Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2023-1 (“Bulletin”) to provide guidance on the application of the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”) to employees who telework (i.e., work remotely from an offsite location away from the employer’s official workplace). Specifically, the Bulletin covers how hours worked by employees who telework are to be tracked.
The Bulletin is directed to agency officials responsible for enforcement and provides employers with an understanding of how the DOL applies existing laws and regulations to common remote-work scenarios.
What is the Purpose of the Bulletin?
The Bulletin addresses FLSA regulations governing “hours worked”, rules related to break time, privacy for nursing employees to express milk, and FMLA eligibility factors. “Hours worked” generally includes all time spent by an employee between their first principal activity and their last principal activity of the day. However, four scenarios were considered in which breaks from active work may challenge this general rule:
- Short breaks of 20 minutes or less: The Bulletin provides that short breaks of 20 minutes or less are compensable hours worked regardless of if an employee is teleworking or working at the employer’s worksite.
- Meal breaks: Bona fide meal breaks (30 minutes or more) in which an employee is completely relieved from duty for the purpose of eating regular meals are not hours worked. This is true irrespective of the location from which employees perform their work.
- Off-duty time: Breaks that are longer than 20 minutes are excluded from hours worked under the FLSA if the employee is completely relieved from duty and is able to use the time effectively for their own purposes.
- Break time to express breast milk: Under the FLSA, an employer’s obligation to provide “reasonable break time” as well as an appropriate place to express breast milk extends to telework employees.
The Bulletin also addresses FMLA eligibility requirements for remote employees in terms of hours worked (i.e., an employee must work 1,250 hours in the last 12 months) and the small worksite exception (i.e., an employee must work at a worksite with at least 50 employees in a 75-mile radius).
Rules governing when breaks must be treated as hours worked do not change just because an employee is working from home or away from an employer’s worksite. Such an employee remains covered by the FLSA and FMLA.
For more information on the latest Field Assistance Bulletin and an employer’s obligations with respect to telework employees, please contact us at firstname.lastname@example.org.
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.