DOL issues guidance for remote workers under FLSA, FMLA

Remote work continues to be prevalent even after a “return to normal,” post COVID-19 pandemic.  Some research shows that as of 2022, about 35% of all American workers had the option of working from home five days per week.  Still, many employers continue to grapple with questions about their obligations under existing employment laws—most of which do not provide any specialized guidance for employers offering telework options. The DOL has finally spoken up to provide clarity on some important issues under both the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).  Employers who allow employees to work on a remote basis should understand the details to learn how to handle employee break time, FMLA eligibility and more.

Is employee break time compensable time for FLSA purposes/?

The DOL guidance in FAB 2023-1 addresses the agency’s position on whether remote workers must be paid for short breaks taken throughout the course of the day.

The DOL takes a bright-line approach in this area.  Pursuant to the DOL guidance, any break that is less than 20 minutes is compensable time if the employee is a non-exempt employee (so qualifies for overtime pay under the FLSA).  That’s true regardless of the purpose of the break.

The position is based on the principle that employees commonly take short breaks throughout the day regardless of whether they are located on site at the employer’s office or are working remotely in their own homes.  Because these breaks reduce fatigue and allow the employee to be more productive throughout the workday, they actually add value for the employer.

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The DOL differentiates these short breaks from longer meal breaks, or longer breaks to handle household issues, such as making dinner or caring for children.  With respect to these longer breaks, the DOL found that they are not compensable time because they completely relieve the employee of employment duties so that the employee can effectively use the time for their own personal purposes.

So, if the employer knows or has reason to believe that the work is being performed, that time is compensable for FLSA purposes.  The DOL notes that it is up to the employer to establish reasonable procedures for employees to use when they are working during unscheduled time to ensure that the employee is paid for all hours that they work.

Note that this guidance only applies to employees who are not exempt from FLSA overtime requirements.  While the guidance does not have the force of law, it can be relied upon by courts in determining whether employers have complied with FLSA rules.

Can a remote worker be eligible for FMLA leave?

In FAB 2023-1, the DOL also addressed whether remote workers are eligible for FMLA leave.  To be eligible, an employee must work at least 1,250 hours in the prior 12 months and work at a worksite with at least 50 employees within a 75-mile radius (these are the standards that apply regardless of whether the employee works remotely or not).

However, the employee’s residence does not count as the employee’s worksite.  Instead, the applicable worksite is the location where the employee reports or from which their assignments are made.  If at least 50 employees (including remote workers) are working within 75 miles of the office to which the employee reports or from which assignments are generated, the remote employee is eligible for FMLA leave (even if no other employees are employed within 75 miles of the employee’s remote office).

If the employee is eligible for FMLA leave, the employer should remember that they are eligible for up to 12 weeks of paid leave per 12-month period for qualifying purposes.  The “12 week” threshold is especially important for employees who do not work a standard 40-hour week.  In other words, 480 hours of FMLA leave may not be sufficient for employees who work more than 40 hours per week.

The DOL guidance provides important reminders for employers who opt to continue providing employees with remote work options.  While this area of employment law continues to evolve, it is important to pay close attention to new and updated guidance on these and other important remote employment issues.