U.S. Department of Labor Issues Guidance on Remote Workers

In its first Field Assistance Bulletin of the year, the U.S. Department of Labor (“DOL”) offered new guidance regarding the application of certain key federal employment laws — the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) — to employees who work remotely. The bulletin — which is intended to provide government investigators and staff with guidance on DOL’s enforcement positions and clarification of policies or changes in policies — addresses three specific issues related to remote workers:

1. 1. how to apply the FMLA eligibility factors;
   2. how to ensure remote workers are properly paid under the FLSA; and
   3. how to provide breaks for remote nursing employees under the FLSA.

The important takeaways for each of these issues are addressed in more detail below.

FMLA Eligibility for Remote Workers

The FMLA provides job-protected unpaid leave to eligible employees for certain qualifying family- or medical-related reasons. Generally, an employee is eligible for FMLA leave if they

1. 1. have worked for the employer for at least 12 months;
   2. have worked at least 1,250 hours during the previous 12-month period; and
   3. work at a location where the employer has at least 50 employees within 75 miles.

With the increased prevalence of remote work, the location analysis has become more complicated (especially in cases where an employer’s entire workforce is remote). According to the new guidance, when an employee works from home or otherwise works remotely, “their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.” If an employer has at least 49 other employees within 75 miles of the employee’s worksite, then the location prong of the FMLA eligibility test would be satisfied.  This count would include other employees who work remotely and either report to or receive assignments from the same location, even if they are not physically located there.

In an example provided by the DOL, if an advertising agency employs multiple data processors in various cities (all more than 75 miles from the agency’s headquarters), but all of these employees receive their work assignments from their manager, who works at the company’s headquarters, then the headquarters is the remote employees’ worksite for purposes of determining FMLA eligibility. If there are more than 50 employees who either work at headquarters or otherwise receive work assignments from headquarters, like the remote data processors, then those remote workers will meet this factor for FMLA eligibility, even though they do not physically work at headquarters. The practical result of this interpretation is that many remote workers will be eligible for coverage under the FMLA.

Paying Remote Workers in Accordance With the FLSA

Although the DOL has previously issued guidance related to the tracking of hours of remote workers, the Field Assistance Bulletin specifically addresses how employers should ensure proper payment for breaks and off-duty time. As context, the FLSA requires that employees be paid for short breaks (those that last 20 minutes or less). Individuals who work remotely often take short breaks to go to the restroom, get a cup of coffee, or take a short walk. The new guidance makes clear that employers are required to pay employees for these short breaks, regardless of whether the employee is physically present at an office or job site or working remotely from their home or another location. In other words, employers must ensure that remote workers are paid for short breaks just like their in-person counterparts.

On the other hand, employers are not required to pay employees for bona fide meal breaks (those that are 30 minutes or more), or other longer breaks that allow the employee to “use the time effectively for their own purposes and during which the employee is completely relieved from duty.” Such breaks need not be paid, regardless of where the employee is working. During these periods, however, the employee must be completely relieved of work duties. For remote employees, these breaks are difficult to monitor. For example, if a remote employee attempts to break for lunch, but is then interrupted by receiving phone calls from work or responding to emails, the time must be paid. In an example from the guidance, if an employee takes an hour-long break to transport their children to school, they do not have to be paid for that time even if it is in the middle of the employee’s workday. If the employee answers work emails or takes calls during this time, however, they must be paid. Accordingly, employers should review their policies and clearly communicate to all employees, remote or otherwise, that they should not engage in any work duties while taking a bona fide meal or other longer break.

Breaks for Remote Employees Who Are Nursing

Finally, under the FLSA, employers are required to provide reasonable break time, as well as a place (other than a bathroom), for employees who are nursing to express breast milk up to year one after the child’s birth. The new guidance makes clear that these protections apply equally to remote employees.

This means that remote employees must be provided a place in which they are shielded from the view of others to address their nursing needs. This may present a specific concern for remote employees, who may be subject to video monitoring through video conferencing systems or the like. Employees who are subject to such requirements must be given a break from these monitoring systems to be able to express breast milk outside of view.

Further, time spent expressing breast milk is compensable (or not compensable) based on the guidelines described above. If the break is a short break or if the employee is not fully relieved of work duties (i.e., they attend a Zoom meeting with their camera turned off), then they must be paid for that time.

Conclusion

Although the Field Assistance Bulletin does not create any new obligations for employers, it does highlight and address certain specific scenarios faced by many employers with remote workers. The key takeaway is that remote workers are entitled to the same protections under the FMLA and FLSA as onsite employees, recognizing that it may be more difficult for employers to ensure their obligations when it comes to remote workers. Remote work is here to stay, and employers should remain aware of how federal (and state) employment laws might apply to remote workers.

If you have any questions about the DOL’s guidance or how to apply the FLSA or FMLA to your remote employees, please contact a member of AGG’s Employment team.