On February 9, 2023, the U.S. Department of Labor (“DOL”) issued Field Assistance Bulletin 2023-1 (the “FAB”), which directs agency officials responsible for enforcement on the application of the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”) to teleworking employees. This guidance provides valuable insight to employers on the DOL’s interpretation of various issues, including: (1) compensation of teleworking employees under the FLSA, (2) protections for nursing employees when working remotely, and (3) eligibility rules for teleworking employees under the FMLA. The purpose of the new guidance seems to be aimed at reminding employers that employees who telework remain covered by the protections of both the FLSA and the FMLA.
Telework and the FLSA
In the FAB, the DOL reminds the agency officials (and any employer reading it) that regardless of work location, short breaks (20 minutes or less) generally are counted as compensable hours worked, whereas, longer breaks “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes[,] are not hours worked.” The DOL clarifies that these “longer breaks” can be anything more than 20 minutes and provides the following example:
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.
The FAB also reminds employers that under the FLSA, employers must pay for all time they know or should know is being worked. Overall, this is a good reminder to all employers that having policies in place that discuss a remote worker’s ability to set his or her own schedule is important, as is having system in place where all employees accurately track time worked (or, not worked).
Protections for Nursing Mothers Working Remotely
The FAB also reiterates the FLSA’s requirement 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” 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.” The FAB notes that this protection is extended to teleworking employees, whether the employee is teleworking from their home or another location. This means that regardless of where the employee is working, the employee must have a place to express breast milk that is “shielded from view”, meaning free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk regardless of the location they are working from. While presumably this is a not an onerous task when an employee is working from home, other worksites (such as a client worksite) should not be forgotten.
Telework and the FMLA
Under the FMLA, eligible employees of covered employers are entitled to take job-protected leave for specified family and medical reasons. The DOL reminds us in the FAB that to use FMLA leave, an employee must work for a covered employer and be eligible for leave. Employees are eligible for FMLA leave when they have worked for the employer for at least 12 months; have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and work at a location where the employer has at least 50 employees within 75 miles. The FAB notes that when an employee teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. In other words, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement. The FAB provides the following example to illustrate the interplay between remote work and the FMLA:
Example #5: Employee B works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee B’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee B’s worksite, for FMLA eligibility determination, is the company’s headquarters. The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee B’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. Thus, the employee is considered to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite even though she herself does not work within 75 miles of the company headquarters.
California employers should remember that when updated in January of 2021, the California Family Rights Act (“CFRA”) removed the requirement that employees work within a 75-mile radius of each other to be covered by the CFRA. As such, the DOL’s guidance is specific to those employer’s subject to the FMLA. As always, when implementing policies, California employers must ensure those policies comply with the federal law, but also with the generally more stringent California law.