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DOL Issues New Guidance for Teleworking Employees
The U.S. Department of Labor recently issued guidance on compensating nonexempt teleworking employees in compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The new guidance is titled Field Assistance Bulletin No. 2023-1.
The Workday and Breaks
Per the new guidance, the workday generally begins when an employee starts their first “principal activity,” which is an activity the employee has been hired to perform, and concludes when the employee ends the activities. Under this definition, the workday may be longer than the employee’s scheduled shift.
The FLSA requires that nonexempt employees be paid for all hours worked, regardless of work location. Short breaks of 20 minutes or less, including, but not limited to, the employee going to the restroom, getting a coffee, or stretching their legs, are considered time worked and must be compensated.
Conversely, bona fide meal breaks, which typically last 30 minutes or more, and other breaks longer than 20 minutes are generally not considered hours worked under the FLSA. For a break to be uncompensated, the employee must be: (1) completely relieved from duty, and (2) able to effectively use the time for their own purposes. If the employee is frequently interrupted with telephone calls during a lunch break, that employee is not relieved from duty and that time is considered time worked and must be paid.
For an employee to be completely relieved from duty, a supervisor must tell them in advance that they may leave the job and that they will not need to begin work until a specific time. Alternatively, the employer may permit the employee to decide when they will resume working. For example, an employee may choose to start work at 7 a.m., take a one hour break from 8 to 9 a.m. to prepare their children for school, then resume work at 9 a.m. The one-hour break is not compensable if the employee is relieved from duty and is able to effectively use the time for their own purposes.
Importantly, school officials should consult with the applicable collective bargaining agreement, which may already address employee break time and compensation.
Breaks to Pump Breast Milk
While the FLSA requires that employers provide “reasonable break time” for an employee to express breast milk, an employer is not required to compensate the employee for such breaks. If a nursing employee uses a break time to express milk, the employer must compensate that employee in the same way it compensates employees for other breaks.
Employers must ensure that employees have a place shielded from view to express milk, which includes freedom from view through video systems, computer cameras, and web conferencing platforms. If the employee is still on duty (e.g., the employee turns off a computer camera and expresses milk but continues to participate in a conference call or video meeting), then the employee must be compensated for that time.
FMLA and Remote Worksite
For FMLA eligibility purposes, for an employee who works from home or teleworks, their worksite is the office to which they report or from which their assignments are made. The count of employees within 75 miles of a worksite includes all employees within that area, including employees who telework and report to or receive assignments from that worksite. Teleworking employees receive the same FLSA and the FMLA protections as employees who work on site. Eligibility requirements do not change based on an employee’s remote work location.
Remote work options are here to stay. The Department of Labor’s guidance offers a helpful reminder that protections under the FLSA and FMLA apply to all employees, regardless of working location.