The U.S. Department of Labor’s Field Assistance Bulletin on employee telework is the blogging gift that keeps on giving.
Last week, we addressed how to determine whether a remote employee is FMLA-eligible. Today, let’s get when you have to pay nonexempt remote workers for break time.
In general, the FLSA regulations explain that employers generally have to compensate nonexempt employees for short breaks of twenty minutes or less. They are considered hours worked. Conversely, longer breaks “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 hours worked.”
The regulations clarify that companies must tell employees in advance that they may leave the job and they will not have to commence work until a specified hour has arrived. Otherwise, they are not completely relieved from duty. An employee may also be completely relieved from duty when the employer allows the employee to freely choose the hour at which they resume working and the time is long enough for the employees to effectively use for their own purposes.
Do these principles apply outside the office — perhaps, at home or at some other location away from the employer’s worksite?
They do. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked regardless of whether the employee works at the employer’s location or teleworks from another location.
Here are three examples from the DOL to drive the point home:
Example #1: Employee A works at a shared workspace not controlled by their employer and takes a break for lunch from 12:30 p.m. to 1:00 p.m. During this break, Employee A is interrupted by work phone calls, with each call lasting several minutes. Because the meal break period of 30 minutes is frequently interrupted by work phone calls, Employee A would not be considered relieved of all duties and the meal break period would have to be counted as hours worked.
Example #2: Employee B works from home and is allowed flexibility to set their own schedule. Employee B starts work at 7:00 a.m., takes a one-hour break from 8:00 a.m. to 9:00 a.m. to get their children ready for school, and resumes work at 9:00 a.m. The period between 8:00 a.m. and 9:00 a.m. is not work time under the FLSA because Employee B is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.
Example #3: Employee C teleworks from home and has an arrangement with their employer where Employee C works from 9:00 a.m. to 4:00 p.m., takes a three-hour break from 4:00 p.m. to 7:00 p.m., and returns to work at 7:00 p.m. and works until 8:00 p.m. Employee C is free to do whatever Employee C chooses during this three-hour break, including staying at home to make dinner and do laundry, for example. Under these circumstances, because Employee C is relieved from duty and is able to effectively use the period between 4:00 p.m. and 7:00 p.m. for their own purposes, that time is not work time under the FLSA.
Here’s another tip. Make sure to have a reasonable reporting procedure to capture non-scheduled time. The DOL has another Field Assistance Bulletin to help with tracking teleworking employees’ hours of work.