Remote working has presented a range of new challenges for employers, particularly when it comes to ensuring employees are not overworked and have adequate break time. To support employers in meeting their obligations and protecting their staff, the Department of Labor (DOL) has issued updated guidance. This article outlines the DOL's Fair Labor Standards Act (FLSA) eligibility rules for remote employees taking breaks and nursing mothers. We also explain how employers must provide appropriate places for nursing moms to express milk when they are working from on-site.

On Feb. 9, 2023, the DOL issued Field Assistance Bulletin (FAB) No. 2023-1, Telework Under the Fair Labor Standards Act and Family and Medical Leave Act. The FAB outlines how the DOL will enforce compliance with Fair Labor Standards Act (FLSA) rest period requirements for remote workers and employees who are nursing.

Compensable Time

In the new guidance, the DOL stated that a federal rule requiring employers to pay nonexempt employees for short rest breaks of less than 20 minutes applies to remote workers the same as to traditional workers who report to a job site. The FAB ensures all employers understand that they must pay employees for every moment on the job- not just active labor. But, of course, that also includes time spent waiting or taking a break.

Employers must compensate their employees for all hours worked, no matter where work takes place or how it is scheduled. The standard used to determine if time is “hours worked” is whether the employer knows or has reason to believe that work is being performed. Establishing reasonable reporting procedures may help employers better understand when employees work and ensure they are justly compensated.

What are Rest Breaks vs. Hours Worked?

Under the FLSA, rest breaks of 20 minutes or less must be compensated, but if employers allow employees to take more extended periods off, those hours are not required to be paid. The Federal Activity Bulletin further clarifies that workers can only truly have a break when their employers advise them that they may leave and specify a time for their return - giving staff permission for some freedom during the break. Alternatively, allowing long enough stretches where personnel feel comfortable taking action relevant to themselves without having any job-related obligations is also accepted as completely relieving of all duties.

FAB 2023-1 indicates that compensable time principles apply regardless of whether the work is performed at employer worksites, employee homes, or any other location away from employer worksites. The DOL has offered the following illustrations.

What are some examples of Hours Worked vs. Rest Breaks?

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. Employee A is interrupted during this break by work phone calls, each 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 can set their schedule flexibly. 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 prepare their children 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 can 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 can 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.

Break Time for Employees Who Are Nursing

Nursing mothers are empowered by the Fair Labor Standards Act to take essential break times to nourish their baby. Employers must ensure that a private place, other than a bathroom, available so moms can express milk without being disturbed or visible to others. This benefit continues up until one year after birth.

The principles for nursing breaks apply at the location where employees work, including when employees are working remotely from their homes or another site. The DOL asserts that, for example, “an employer must provide an appropriate place for an employee to pump breast milk when the employee is working at an off-site location, such as a client worksite.”

In addition, the FAB clarifies that supplying a location “shielded from view” includes ensuring that employees are free from observation by any employer-provided or required video system, such as a computer camera, security camera, or web conferencing platform. This requirement applies when employees are expressing milk, regardless of the location from which they are working.

This DOL publication reminds employers that the frequency and duration of these breaks will vary depending on individual situations. In most cases, employers cannot deny employees the right to take needed nursing or pumping beaks. However, employers are not required to compensate employees for these breaks unless they provide compensated breaks. Recently the DOL also provided updated guidance on FMLA as it pertains to remote employees. 

The informationcontained in this article is provided as general guidance and may be affectedby changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZprofessional. This information is provided as-is with no warranties of anykind. CBIZ shall not be liable for any damages whatsoever in connection with itsuse and assumes no obligation to inform the reader of any changes in laws orother factors that could affect the information contained herein.