DOL Weighs in on FLSA and FMLA Considerations of Teleworking
The Department of Labor recently issued guidance (“Guidance”) regarding the impact of telework under the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). The Guidance provides valuable clarity to employers, including related to these factors:
(1) The definition of a teleworking employee’s “worksite” for determining their eligibility under the FMLA;
(2) When employee breaks must be counted as compensable time worked under the FLSA, including break time for pumping breast milk; and
(3) Other employer obligations toward nursing employees.
To review, the basic eligibility requirements under the FMLA are that the employee: (1) worked for the employer for at least 12 months; (2) has at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and (3) works at a location where the employer has at least 50 employees within 75 miles.
The recent Guidance expands on this last criterion, noting that an employee’s personal residence is not a worksite. Instead, “their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.” For example, the Guidance explains that employees working from home who are issued assignments from a manager at their company’s headquarters should consider the headquarters their worksite for FMLA eligibility purposes, even if those employees’ homes are not within 75 miles of the headquarters.
Moving onto the FLSA: this law requires covered employers to pay non-exempt employees for all hours worked, and the applicable regulations provide that “hours worked” may include time spent on break. Specifically, breaks of 20 minutes or less are generally counted as compensable hours worked, whereas longer breaks, that permit employees to use the time effectively for their own purposes and during which employees are completely relieved of duty, are not counted as hours worked. As clarification, the Guidance provides the example of employees who are not “completely relieved of duty” when they take 30-minute lunch breaks, because their breaks are frequently interrupted by work phone calls.
Employers are required to provide a reasonable amount of break time and a space to nursing mothers, to express milk as frequently as needed, for up to one year following the birth of the employee’s child. The frequency of breaks needed to express breast milk as well as the duration of each break will likely vary. The space provided by the employer cannot be a bathroom and it must be shielded from view and free from intrusion by coworkers or the public. The Guidance notes that while employers cannot deny such time off, the FLSA does not require that such breaks be compensated. However, such breaks may be compensable under state law, or if the employer provides for a generally compensable break and an employee uses that break to pump breast milk.
The Guidance further states that the FLSA requirement that employers provide nursing employees with a place (other than a bathroom) that is free from observation, in which they can pump breast milk, still applies, even when the employee teleworks from home or another location. The Guidance notes that employers should ensure that any employer-provided or required video system (including a computer camera) does not observe employees when they pump breast milk.
Takeaways for employers:
· FMLA Leave: Employers with 50 or more employees who deny FMLA leave to certain employees on the basis of the “50/75 rule” should consult with an employment lawyer to determine if they are acting in accordance with the law pursuant to this Guidance.
· Breaks: Employers who wish to avoid compensability of employees’ breaks of longer than 20 minutes should:
(1) Notify employees in advance that they may leave their jobs at a specified time and are not required to re-commence work until a later specified time.
(2) Issue a policy notifying employees that when they take breaks of longer than 20 minutes (whether for a meal or for another reason), employees are not required to respond to work-related communications or otherwise perform any work during that break (except when explicitly told otherwise). The policy should also clarify that such breaks are not considered compensable time.
Whichever option the employer selects, it should make clear the expectations of employees and prohibit interference with employee breaks.
· Nursing Employees: Employers may consider issuing a policy that informs nursing employees that they have the right to pump breast milk in a place (other than a bathroom) that is free from observation. This policy should inform teleworking nursing employees that:
(1) If they do not have such a place to pump breast milk, they should inform the employer and arrangements will be made; and
(2) If they choose to pump breast milk in a place that can at times be observed by an employer-provided or required video system, including a computer camera, then they should ensure that such video system is covered, disabled, or otherwise unable to observe them while pumping.
This post is published for informational purposes only and does not constitute legal advice or create an attorney-client relationship. No blog post should be used as a substitute for advice from a licensed attorney, and readers are always urged to seek legal counsel on legal questions concerning specific situations.