Prompted by the many new telework or remote work arrangements arising out of the COVID-19 pandemic, the U.S. Department of Labor’s (DOL) Wage and Hour Division has issued Field Assistance Bulletin (the “Bulletin”) No. 2023-1. The Bulletin addresses several vexing questions over compliance with the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) when a business employs teleworkers. Although the Bulletin does not have the effect of law, it is an important statement of DOL policy and statutory interpretation. Here are the main takeaways from the Bulletin:
The Bulletin reminds employers that they have an obligation to pay non-exempt employees for short breaks of 20 minutes or less, regardless of whether they are working in the office or teleworking offsite.
Longer Breaks and Off Duty Time
Employers can also provide unpaid breaks if they are longer than 20 minutes and if the employee can use their time for their own purposes and is completely relieved from duty. This time off is not considered hours worked. This rule applies regardless of the location from which employees work.
Break Time for Pumping Breast Milk, and Privacy to Pump
The FLSA also requires that employers provide covered employees “reasonable break time for an employee to express breast milk for such employee’s nursing child for 1 year1 after the child’s birth each time such employee has need to express the milk” and 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.” These protections apply at the employee’s worksite, including when an employee is teleworking from their home or another location.
For example, an employer must provide an appropriate place for an employee to pump breast milk when the employee is working at an off-site location, such as a client worksite. This place must be shielded from view, and free from observation by any video surveillance system, including web cameras.
Employers cannot limit the frequency or duration of pump breaks. In addition, if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time. For example, if a remote employee chooses to attend a video meeting or conference call during their pump break – even if off camera – the employee must be paid for the break.
Telework and FMLA
The Bulletin discusses another tricky issue: how to discern whether remote workers are eligible for FMLA. The general rule is that employees are not eligible for FMLA leave (even if they work for a “covered employer”) if there are fewer than 50 employees within a 75-mile radius of the worksite. But the Bulletin points out that, for FMLA eligibility purposes, a remote employee’s “worksite” for eligibility purpose is not their home. Instead, it is the place from which employees get their work assignments or direction. In other words, if any otherwise eligible employee usually reports to and receives her assignments from a Phoenix, Arizona office of her employer at which more than 50 employees regularly work, but the employee works remotely from her home in Tucson (which is 100 miles from Phoenix), she nonetheless meets the FMLA eligibility requirement notwithstanding her physical location.
The Bulletin also reinforces the importance of accurately tracking hours worked by remote employees for both FMLA and FLSA compliance purposes. The 1,250-hour requirement for FMLA eligibility includes hours worked at an employer’s worksite, from home, while teleworking, or any combination of these locations. Failing accurately to track hours worked not only may deprive a non-exempt employee of wages, but also may lead to difficulty determining FMLA eligibility. Although employers are not required to exhaust every means available to determine unreported hours of work, employers should take reasonable steps to prohibit unreported work hours, to pay for reported hours worked outside of employees’ regular shifts, and to train managers not to discourage employees from reporting remote working time.
- Employer obligations under the FLSA remain intact. Despite the changing work environment, employers still have the same obligations under the FLSA to compensate employees for all hours worked, including all work performed remotely. The failure to abide by these obligations can result in hefty damages, which can include unpaid wages, liquidated damages, and attorneys’ fees.
- Employers should exercise reasonable diligence to track teleworkers’ work hours. Employers should provide employees with a process and procedure to report hours worked, particularly those that were not scheduled or were worked during “off hours.” Employers should also train its managers and supervisors not to discourage the reporting of hours worked. Employers should consider using software to track and monitor employee productivity.
- Employers must create a lactation space for breastfeeding employees even when working away from the office. They also cannot limit the frequency or duration of pump breaks so long at they remain reasonable.
- Employers should review their FMLA policies to make sure they comply with the latest guidance on determining eligibility for remote workers. Check your handbook to make sure your organization is not denying remote workers access to FMLA leave.
- Federal law now requires employers to allow for employees to nurse for two years, as described here: https://www.bipc.com/expanded-employer-requirements-for-pregnant-and-nursing-mothers.