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DOJ issues bulletin on remote work breaks, other protections

The Department of Labor (DOL) has issued a guide to help employers manage wage-and-hour laws for remote employees. The bulletin addresses the Fair Labor Standards Act (FLSA), lactation accommodations, and the Family and Medical Leave Act (FMLA).

Break time for remote employees

The FLSA requires employers to pay non-exempt employees at least the federal minimum wage for all hours work and overtime for hours worked in excess of 40 per workweek. Short breaks of 20 minutes are considered “compensable” time and must be paid. Breaks of 30 minutes or more do not have to be paid, provided the employee is relieved of all duties.

From one perspective, the DOL bulletin serves as a simple reminder that employers must ensure that non-exempt employees are accurately tracking their hours.

But remote employees, particularly those who work from home, may be tempted to put in extra hours (unseen and unrecorded) to catch up on work or otherwise help the team. As an employer, it’s a good idea to emphasize that you really do need your employees to track all hours worked.

Some employers are concerned with the bulletin’s emphasis on 20-minute breaks. Generally, employees who work from home may be interrupted multiple times throughout the day.

They may log in and officially start their workday, only to step away here and there to see a child onto the bus, take the dog on a short walk up the block, put laundry in the washer, and set out a snack when their kids get home from school. As long as each disruption lasts less than 20 minutes, under DOL guidance it must be counted as work time.

The DOL defends its position, writing, “Whether teleworking at home or working at the employer’s facility, employees often take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities. By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.”

Employers who are concerned about productivity and abuse have options for how they choose to address this issue.

Some may prefer to put their employees on a regular schedule with set meal periods (unpaid) and 15-minute breaks (paid). Excessive periods of inactivity or inaccessibility (suggestive of a non-work interruption) could be treated as a disciplinary issue.

Alternately, employers can allow employees flexibility in setting their schedules, subject to certain expectations around time tracking and the number of hours worked. In this situation, an employee who chooses to take an off-duty break could be instructed to clock out and stop working for at least 30 minutes.

Lactation accommodation

The FLSA also requires that employers provide an employee with reasonable break time to express breast milk, a private place (other than a bathroom) to express milk, and a place to store milk until the end of their workday.

The DOJ bulletin reminds employers that these provisions apply when the employee is working at an off-site location, such as a client worksite. Furthermore, the FLSA stipulates that the employer must provide a place that is “shielded from view.” Employers should keep in mind that means the employee is free from observation by security cameras, video systems, or web conferencing tools.

Remember that non-exempt employees are to be paid for all hours worked. As illustrated by an example in the bulletin, that means if a mother takes a lactation “break” while signed into a teleconference with her camera off, she is still working and that time has to be paid.

FMLA eligibility: Finally, the bulletin addressed FMLA eligibility for remote workers. Generally, the rule is that employees are not eligible for FMLA (even if they work for a covered employer) if there are fewer than 50 employees within a 75-mile radius of their worksite.

The DOJ bulletin clarifies that an employee’s personal residence is not a “worksite.” Rather, their worksite is the office to which they report or from which their assignments are made. The count of workers 75 miles from a worksite includes all employees who report to or receive assignments from that location.