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The U.S. Department of Labor (“DOL”) recently issued guidance confirming that the federal laws known as the Family and Medical Leave Act (“FMLA”) and Fair Labor Standards Act (“FLSA”) apply to employees that are working remotely. We explain the details below:
Family and Medical Leave Act
Under the FMLA, eligible employees may take up to 12 weeks of job-protected leave for specified family and medical reasons. The DOL explained that an employee who works from home is eligible for FMLA leave on the same basis as an employee who reports to any other worksite to perform their job when the employee meets the minimum eligibility standards:
- Has worked for the employer for at least 12 months;
- Has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and,
- Works at a location where the employer has at least 50 employees within 75 miles.
However, in connection with this third requirement, the employee’s home is not considered the employee’s worksite. Rather, for FMLA purposes, the “worksite” is defined as the location where the employee would report to work (if the employee was not working remotely) or where the assignments are made.
Fair Labor Standards Act
DOL also clarified that under the FLSA, remote workers must be paid for all hours worked. Generally, for on-site employees, the workday is the period between the time when the employee commences their first “principal activity” and the time on that day at which they cease such principal activity or activities. Under implementing regulations, principal activities are the activities which the employee is “employed to perform.”
Under the DOL’s new guidance, if an employer knows or has reason to believe that work is being performed, the employee’s time must be counted as hours worked regardless of whether the employee works at the employer’s location or teleworks from another location. The DOL guidance states that “hours worked” are not limited only to time spent on “active productive labor but may, for instance, include time spent waiting or on break.”
To ensure that an employer captures and pays for all compensable time, we recommend that remote workers clock in/out as they would if they worked on site. To meet the requirements of the law, these time records must record the time that work began, the time when the meal break began, the time when the meal break ended and the time when the workday ended.
For employers in California, this is not new news. California employers are required to keep track of actual hours worked for non-exempt employees regardless of where the work is performed.
Meal and Rest Breaks: Generally, under the FLSA, breaks of 20 minutes or less are considered compensable hours worked. However, breaks of 30 minutes or more “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 considered hours worked. 29 C.F.R. § 785.16. The DOL guidance clarifies that these standards also apply to remote employees.
In California, the 10-minute rest periods must be paid and the 30-minute required meal periods need not be paid, but must be reflected on time sheets.
Breaks for Expressing Breast Milk: FLSA protections for nursing employees also apply to remote workers, including both providing employees with a reasonable time and reasonable place to express breast milk. Employees who breastfeed are entitled to client worksites, as well as being “free from observation by any employer provided or required video system…when they are expressing breast milk regardless of the location they are working from.” Therefore, if an employee attends a meeting via Zoom, and the employee is off camera to express breast milk, that time must be paid.
To note, employers are not required by the FLSA to pay nursing employees for breaks taken to express milk, though state laws may require such compensation. However, California law does not provide compensation to employees for taking breaks to express milk, but if the employee is expressing milk during their 10-minute rest periods, such time must be paid.
Implications for Employers
All employers with remote workers should ensure that their policies are consistent with the DOL’s new guidance. Further, employers may choose to implement a procedure for employees to report their hours worked, such as using software to track and monitor non-exempt employees’ hours to ensure that they have an accurate accounting and that all employees are paid accordingly.
Further, California employers should note that in addition to the FLSA and FMLA, California law also applies, such as the California Labor Code and the California Family Rights Act. California employers must also reimburse employees for any "necessary" expenses incurred while working from home, including costs for internet, phone, and home office supplies. In addition, California workers’ compensation laws apply to remote workers. For employers located outside of California, please be sure to check your state and local laws for applicable guidance.
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