In February, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division (WHD) issued guidance on applying the Fair Labor Standards Act (FLSA) to teleworkers. The guidance includes information on tracking hours and providing nursing breaks. In addition, it covers determining eligibility under the Family and Medical Leave Act (FMLA). While telework and remote work are often used interchangeably, there are some key differences. Generally, a remote worker’s primary workstation is away from the office and often at a greater distance. Teleworkers, meanwhile, may often work off-site just part of the time and come into the office on other days. This schedule may seem complex, but employers have an obligation to properly track compensable hours for these workers to ensure they pay them properly. To further help employers record working hours and wages earned, the WHD also launched an employee timesheet app.
The FLSA Protects Teleworkers
The FLSA is the nation’s primary wage law. It requires employers with two or more workers on payroll to compensate non-exempt employees for all hours worked, including overtime hours. This requirement applies equally to work performed away from the employer’s worksite or premises, as is the case with teleworkers. Hours worked include any time the employer knows or has reason to believe that the employee is performing work. This can be difficult for employers to determine when employees work off-site, either part or all of the time. However, employers can exercise due diligence by providing a reliable procedure for reporting hours and paying workers for all hours worked, whether or not they are scheduled.
Tracking Teleworker Hours and Nursing Breaks
Managing remote employees, in general, can be challenging. The WHD’s Field Assistance Bulletin No. 2023-1 helps employers manage the wage and hour compliance aspect of the telework arrangement. According to the guidance, an employee’s workday begins when they perform their first “principal activity” and ends when they cease such principal activity. Between those activities, employees may take breaks and off-duty periods. Some of these periods are compensated, while some are unpaid.
- Short Breaks (20 Minutes or Less) – Both in-person employees and teleworkers commonly take short breaks throughout the workday. This includes time to use the bathroom, get coffee, do quick chores, stretch, or do other brief activities. Short breaks help reduce employee fatigue, ultimately increasing productivity. Employers must count breaks lasting 20 minutes or less as hours worked.
- Bona Fide Meal Breaks (More Than 30 Minutes) – During these longer breaks, employees cease working for longer than 30 minutes, usually to eat regular meals. This break time is not compensated. Employers must tell employees in advance that they are completely relieved from job duties during a set time or at a time most convenient to the teleworker. Realistically, a teleworker’s workday may differ somewhat from the in-person employee’s scheduled worksite hours.
- Nursing Breaks – Finally, the FLSA requires employers to provide covered employees “reasonable break time for an employee to express breast milk for such employee’s nursing child for one year after the child’s birth each time such employee has need to express the milk.” Additionally, employers must provide a place, other than a bathroom, shielded from view or intrusion of coworkers and the public. Therefore, employers must protect covered teleworkers from webcam observation or virtual meeting participation while they’re nursing. The FLSA does not require employers to compensate for this time.
Determining FMLA Eligibility
Certain covered employees are eligible for unpaid, job-protected leave under the FMLA. Covered employees must have worked for the employer for at least 12 months and have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave. The FMLA covers employers with at least 50 employees within 75 miles. Notably, the worksite is not the teleworker’s home office. Rather, it refers to the employer’s central location to which in-person employees and teleworkers normally report. Therefore, if at least 50 employees (whether in-person or remote) perform work within 75 miles of the worksite, they are covered by the FMLA.