Employers must ensure that employees who work remotely are paid properly under the Fair Labor Standards Act and that they follow the Family and Medical Leave Act not just for on-site workers but also for employees who telework or work away from an employer’s facility, the US Department of Labor said last week in issued guidance to Wage and Hour Division field staff members.
“The FLSA requires covered employers to pay nonexempt employees for all hours worked,
including work performed in their home or otherwise away from the employer’s premises or job site,” the Labor Department said. “When it comes to breaks taken during the workday, the FLSA regulations explain that short breaks of 20 minutes or less are generally counted as compensable hours worked.”
Also, remote workers must not be penalized for taking short breaks to use the restroom, get a cup of coffee, stretch their legs and other similar activities, according to the field assistance bulletin.
“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,” the Labor Department said.
In other words, remote employees are entitled to paid breaks the same as employees working on site.
The Labor Department also noted that the FLSA also requires that employers provide “reasonable break time” for a nursing mother to express breast milk for the employee’s child for a year after the child’s birth, whenever necessary. This allowance is true whether the employee works on site or remotely, the DOL clarified.
FMLA
The FMLA has been good for US businesses, helping stabilize the workforce and keep the country competitive, President Biden said last week in observing the act’s 30th anniversary. Thirty years ago, however, remote work was not even part of the mix. The current field assistance bulletin specifies the “employees who telework are eligible for FLMA leave on the same basis as employees who report to any other worksite to perform their job.”
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 months immediately preceding the leave, and work at a location where the employer has at least 50 employees within 75 miles. For purposes of determining eligibility for remote workers, the employee’s worksite is the office to which the worker reports or from which assignments are made.
“The [field assistance bulletin] is a good reminder to employees that for purposes of determining 50 or more employees within a 75-mile radius, it is the assigned worksite where the employee reports or worksite from which work is assigned, not the employee’s home, that is used to determine the 50-employee threshold,” Tracy Billows, an attorney with Seyfarth in Chicago, told SHRM.
