Finance pros with lingering compliance concerns about employees working remotely will find insight, albeit limited, in new guidance.
In Field Assistance Bulletin 2023-1, the Department of Labor (DOL) discussed the implications of two laws for employers with teleworkers.
The laws are the:
- Fair Labor Standards Act (FLSA), and
- Family and Medical Leave Act (FMLA).
Here’s what the guidance, released on February 9, 2023, said:
Break times under the FLSA
The FLSA doesn’t require break times for most employees during a workday. However, according to DOL regulations, when short breaks are provided, they must be paid.
As the new guidance states, that applies to someone working remotely, too.
Realistically speaking, breaks for teleworkers don’t always mirror those taken on site. Say a teleworker stops typing and heads to the kitchen for a cup of coffee during a 15-minute break – that person would probably be pouring a mid-morning cup of coffee if on site, too.
But how about activities like walking the dog, starting a load of laundry or helping the kids with their homework? While the DOL guidance doesn’t get into specifics like that, it does make clear that for breaks of 20 minutes or less, nonexempt employees should remain on the clock – if they’re in the workplace or working remotely.
As for lengthier breaks, Field Assistance Bulletin 2023-1 includes an example of a nonexempt employee who works from 9 a.m. to 4 p.m., completely stops working for three hours to cook dinner and do laundry and then resumes working from 7 p.m. to 8 p.m. That three-hour period wouldn’t be time worked. After all, longer breaks don’t need to be paid.
For a certain group of workers – nursing mothers – breaks are required under the FLSA. The frequency and duration of the breaks will vary according to the individual situation. Again, the DOL guidance explains that the same rules apply regardless if someone is reporting to the office or working remotely.
You may wonder: Do employees have to be compensated for breaks used to pump milk? The answer depends:
- In general, no.
- Yes, if your company provides compensated breaks.
- Yes, if the employee isn’t completely relieved of duty during the break – for example, an employee chooses to attend a video meeting or conference call off camera while she’s pumping breast milk.
Remember, under the law, employers must provide a place that’s shielded from view. In the workplace, you might need to offer an unused room, ensuring there are no security cameras there. For individuals working from home, let them know they can step away from their computer cameras to express breast milk.
Calculations for FMLA eligibility
Field Assistance Bulletin 2023-1 also considers what compliance with the FMLA looks like for businesses that have employees working remotely.
Specifically, employers may be uncertain about one of the eligibility requirements: having 50 or more employees within 75 miles of the worksite.
As the guidance lays out, employees’ personal residences or other telework locations aren’t worksites for FMLA eligibility purposes. Rather, their worksites are the offices to which they report or from which their assignments come.
Here are two examples:
Company ABC has 10 employees working on site and 40 telecommuting from within 75 miles of the worksite. The 50-employee mark has been met for purposes of FMLA eligibility at Company ABC.
Company 123 has 10 employees working on site, 40 telecommuting from within 75 miles of the worksite and 50 telecommuting from over 75 miles away. Because Company 123 has met the 50-employee threshold for FMLA eligibility, even those employees working remotely from over 75 miles away would be eligible for FMLA leave (assuming all the other requirements are met).
Other workplace laws
Although Field Assistance Bulletin 2023-1 covers only the FLSA and FMLA, there are plenty of other federal, state and local laws to consider if you have a remote workforce.
Don’t forget about ongoing requirements such as displaying workplace posters as well.
