February 09, 2023

DOL Issues Guidance on Teleworkers, FLSA, & FMLA Compliance

On February 9th, the U.S. Department of Labor (DOL) issued its first Field Assistance Bulletin (FAB) of the year, “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act.”  While most of the information is not new, it provides some good reminders and might raise a few questions.

Teleworkers, breaks, and meal periods.  Example: Employee B works from home and starts work at 7:00 a.m., takes a one-hour break from 8:00 – 9:00 a.m. to get the employee’s children ready for school, and resumes work at 9:00 a.m. The FAB explains, “The period between 8:00 a.m. and 9:00 a.m. is not work time under the FLSA because Employee B is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.” [emphasis added]

What if the employee did not choose when to resume work but was told by the employer when to do so? The FAB gives another example and concludes, “In sum, bona fide meal breaks and periods where employees are completely relieved from duty and are able to effectively use the time for their own purposes are not hours worked under the FLSA. This is true regardless of the location from which employees perform their work.” [emphasis added]

Reminder. Under the FLSA, unpaid meal periods for non-exempt (hourly) employees are usually at least 30 consecutive minutes during which the employee is completely relieved from duty. Rest breaks of 20 minutes or less must be counted as time worked. Breaks of more than 20 but less than 30 may be unpaid, so long as the employee is completely relived from duty.

Teleworkers and the Family and Medical Leave Act (FMLA). In order to be eligible for FMLA leave, an employee must have worked for an employer for a total of at least 12 months in the last seven years, worked at least 1,250 hours in the immediately preceding 12 months, and work at a location that employs at least 50 employees within 75 miles of that location.

What if a teleworker works from home and the home is more than 75 miles from the employer’s (or client’s) work location? “An employee’s personal residence is not a worksite…The count of employees within 75 miles of a worksite includes … employees who telework and report to or receive assignments from that worksite.” So, if you have 45 employees working in your headquarters office on the east coast, and another ten employees report into or get their work assignment from the headquarters while working from their homes on the west coast, all 55 employees will meet the worksite requirements for FMLA eligibility.

Reminder. With regard to the 1,250 hours worked requirement of the FMLA, the FAB reminds us, “If accurate records are not kept, the employer has the burden of showing that the employee has not met the hours-of-service requirement in order to claim the employee is not eligible for FMLA leave.”

Tip. Require non-exempt employees to record all time worked and not worked, such as having them record their time out and back in for unpaid meal periods. Check out the DOL’s related FAB from August 2020.

Final Note: The FAB also provides guidance for complying with the requirements of the FLSA to provide “reasonable break time for an employee to express breast milk for such employee’s nursing child,” including under the new PUMP Act. For example, “If a remote employee chooses to attend a video meeting or conference call – even if off camera – [during a break] generally the employee in that case is not relieved from duty and, therefore, must be paid for that time.”

Consult with your company’s employment counsel on all these matters.