COMPLIANCE ALERT – Telework under the Fair Labor Standards Act
By: Birch

Telework under the Fair Labor Standards Act

On February 9, 2023, the Department of Labor issued Field Assistance Bulletin 2023-1- Telework Under the Fair Labor Standards Act and Family and Medical Leave Act. The Field Assistance Bulletin (“FAB”) provided guidance to Wage and Hour Division (WHD) field staff regarding how to ensure workers who telework are paid properly under the Fair Labor Standards Act (FLSA), how to apply protections under the FLSA that provide reasonable break time for nursing employees to express milk while teleworking from their home or another location.

Short Breaks of 20 Minutes or Less

Employees frequently take quick breaks throughout the working day. Breaks of 20 minutes or fewer must be included in the calculation of hours worked. 29 C.F.R. 785.18.

Regardless of whether an employee works from home, the employer’s workplace, or some other location that is not within the employer’s control, the employer must count any brief breaks of 20 minutes or less as hours that have been worked.

Meal Breaks and Off Duty Time

Unlike brief rest periods of 20 minutes or less, legitimate meal breaks, which often last 30 minutes or longer and during which an employee is fully released of all work-related obligations, are not considered worktime. 29 C.F.R. 785.19. Breaks longer than 20 minutes that give the employee full relief from their duties and allow them to use the time efficiently for their own purposes are not considered hours worked. 29 C.F.R. 785.16.

To be completely relieved from duty, the employees must be told in advance that they may leave the job and they will not have to commence work until a specified hour has arrived. An employee may also be completely relieved from duty when the employer allows the employee to freely choose the hour at which they resume working and the time is long enough for the employees to effectively use for their own purposes.

DOL Example 1

Employee A works at a shared workspace not controlled by their employer and takes a break for lunch from 12:30 p.m. to 1:00 p.m. During this break, Employee A is interrupted by work phone calls, with each call lasting several minutes. Because the meal break period of 30 minutes is frequently interrupted by work phone calls, Employee A would not be considered relieved of all duties and the meal break period would have to be counted as hours worked.

DOL Example 2

Employee B works from home and is allowed flexibility to set their own schedule. Employee B starts works at 7:00 a.m., takes a one-hour break from 8:00 a.m. to 9:00 a.m. to get their children ready for school, and resumes work at 9:00 a.m. 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.

DOL Example 3

Employee C teleworks from home and has an arrangement with their employer where Employee C works from 9:00 a.m. to 4:00 p.m., takes a three-hour break from 4:00 p.m. to 7:00 p.m., and returns to work at 7:00 p.m. and works until 8:00 p.m. Employee C is free to do whatever Employee C chooses during this three-hour break, including staying at home to make dinner and do laundry, for example. Under these circumstances, because Employee C is relieved from duty and is able to effectively use the period between 4:00 p.m. and 7:00 p.m. for their own purposes, that time is not work time under the FLSA.

Meal breaks and times when workers are entirely off-duty and can effectively use the time for their own purposes are not considered hours worked for the purposes of the FLSA. Whatever the place from which employees work, this is accurate.

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 year 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. PUMP for Nursing Mothers Act (“PUMP Act”).

These protections apply at the employee’s worksite, including when an employee is teleworking from their home or another location.

Under the FLSA, employers are not required to pay nursing mothers for breaks taken so they can express milk unless required to do so by state law. A worker who utilizes a paid break to express milk, however, must be paid for the break if the company offers paid breaks. Additionally, in accordance with the FLSA’s general rule, any time during these breaks that an employee is not entirely relieved of duties must be paid as work time. Even if off-camera, a remote employee who decides to participate in a video meeting or conference call is typically not released from their duties and is still required to be compensated for that time.