By: E. Fredrick Preis, Jr. and Philip Giorlando
On February 9, 2023, the Department of Labor issued a field assistance bulletin to clarify how the Federal Wage and Hour laws and the Family and Medical Leave Act’s employee threshold eligibility requirement apply to nonexempt remote workers.
COMPENSABLE TIME
One of the largest difficulties for employers with remote workers is ensuring an accurate and legally compliant record of the remote workers’ hours worked each day.
Breaks and Waiting Periods
The DOL’s recent guidance re-affirms this duty by explaining that compensable time includes not only time spent actively working, but also time spent waiting or on a break. Generally, any break of 20 minutes or less must be counted as hours worked.
Unfortunately, the DOL’s guidance on compensable time during breaks does not provide any actual clarification, but simply re-iterates what is already the law. Without additional clarification, employers may be concerned that employees could take improper advantage of the Federal laws regarding break times by working as little as possible.
Meal Breaks
Meal breaks are not compensable, but they must be typically 30 consecutive minutes or more and the remote worker must be completely relieved from duty. The DOL’s guidance provides that employees must be told in advance that they may leave the job and they will not have to commence work until a specified hour has arrived.
Lactation Breaks
Employers are not required by Federal Wage and Hour laws to pay nursing employees for breaks taken to express milk, though some state laws require such compensation. If the employer does provide compensated breaks, then an employee who uses that compensable break time for expressing milk must be compensated under the Federal law. If an employee is not relieved from work while expressing milk, then the employee must be compensated for that time on duty while also expressing milk.
FMLA EMPLOYEE THRESHOLDS
Remote workers not only impact Federal Wage and Hour laws, but also impact the Federal Family and Medical Leave Act (FMLA), which requires employers with certain employee thresholds to provide leave to its employees for specific situations, such as serious health conditions.
Employee Thresholds
To be covered under the FMLA, the employer must have 50 or more employees employed within 75 miles of the worksite. For this employee threshold requirement, a remote worker’s “worksite” is the office to which the worker reports or from which assignments are made, not the employee’s home. For employees with no fixed worksite, the worksite should be the site to which they are assigned as their home base for Worker Adjustment and Retraining Notification Act purposes.
Nonexempt Remote Workers—An Administrative Challenge
As the DOL’s newest guidance makes clear, remote workers can be an administrative challenge in many areas of the law. Employers continue to struggle to accurately calculate the compensable time of nonexempt remote workers, who have less supervisory oversight due to their work location. Additionally, counting employees for the different employee thresholds under Federal and State laws becomes more difficult with remote workers.
These administrative challenges are part of the reason that businesses across the country are beginning to ask employees to come back to the office. For some, the administrative burdens of tracking remote workers are too high a cost for the comfort of remote work.
For employers who continue to have remote workers, it is absolutely critical to establish clear written policies for tracking compensable time, break periods, and where the employee “reports” to work for purposes of the FMLA and other laws. Additionally, employers with remote workers in different States must not only stay abreast of the constantly changing Federal laws, but also of the laws of each State in which a single employee works. Such substantial legal burdens require a committed team monitoring the laws and ensuring that the employer is in compliance with those laws.
