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Eligibility of Remote Employee Rights within FLSA and FMLA Regulations

On February 9th the U.S. Department of Labor (DOL) issued a field assistance bulletin (FAB) to clarify the application of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) hours of service eligibility requirement for teleworkers.

The DOL explained that eligible employees with serious health conditions who require reduced work schedules may use available FMLA leave.

The main focus of the FAB is on hours worked, meal and rest breaks, lactation breaks for nursing mothers and FMLA compliance, all in the context of remote employees.

What constitutes compensable time under the FLSA? The great challenge in employing remote nonexempt employees is creating an accurate record of their hours worked each day. The FLSA’s record-keeping requirements for nonexempt employees apply equally when the employee is working from home or from some other remote location.

The FAB doesn’t change the FLSA on the regulations but it does remind employers of the DOL’s view on FLSA compliance in the context of remote workers.

The FLSA requires covered employers to pay nonexempt employees for all hours worked, including work performed in their home or otherwise away from the employer’s premises. Hours worked is not limited solely to time spent on active productive labor but may include time spent waiting or on breaks.

This statement is very vague and concerning because it doesn’t expand on what qualifies as compensable waiting time when a nonexempt employee is idle. While there are regulations that explore the realm of compensable and non-compensable waiting time the FAB does nothing to define compensable waiting time where a nonexempt employee is working remotely.

This could result in employees unilaterally taking advantage of any implication that all idle time is compensable waiting time. Breaks of 20 minutes or less must be counted as hours worked according to the FAB.

A BONAFIDE meal break is typically 30 minutes or more and is defined as when a nonexempt employee is completely relieved from duty.

Employers are not required by the FLSA to pay nursing employees for breaks taken to express milk, though some states may require such compensation, so check your regs. If the employer provides compensated breaks, however, an employee who uses that break to express milk must be compensated under the FLSA. If an employee isn’t relieved of duty during these breaks, the time is compensable.

Also noted is the fact that when an employee works from home the employee’s worksite for the purpose of FLSA eligibility purposes is the office to which the worker reports or which assignments are made.

For further information on this subject, do not hesitate to contact one of our PMP HR consultants who will be happy to walk you through your individual situation.


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