DOL: Remote Employees Still Must Be Paid for Breaks of Less Than 20 Minutes
Author: Michael Cardman, XpertHR Senior Legal Editor
February 13, 2023
A federal rule that requires employers to pay nonexempt employees for short rest breaks of less than 20 minutes applies to remote workers the same as it does to traditional workers who report to a job site, the US Department of Labor (DOL) said in new guidance.
"Whether teleworking at home or working at the employer's facility, employees often take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities," says a Field Assistance Bulletin (FAB) published by the DOL last week. "By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work."
The FAB does not break any new ground. Rather, it takes longstanding principles the DOL has used to interpret the Fair Labor Standards Act (FLSA) and the Family and Medical Act (FMLA) and applies them to common situations involving remote workers. In addition to rest breaks, the FAB also discusses meal breaks and off-duty time, lactation breaks and FMLA worksites.
Courts are not obligated to follow the FAB beyond its "power to persuade." Nevertheless, the FAB illustrates the enforcement priorities of the current administration.
Meal Breaks and Off-Duty Time
The FAB provides examples of meal and rest breaks that are not compensable under the FLSA.
Unlike short rest breaks, meal breaks of 30 minutes or longer and rest breaks longer than 20 minutes do not count as hours worked if employees can use the time effectively for their own purposes and are completely relieved from duty.
To be "completely relieved from duty," employees either must be told in advance that they may leave the job and will not have to start work until a certain time or they must be allowed to freely choose the hour at which they resume working and the time is long enough for them to effectively use for their own purposes.
The FAB offers a few examples of how these principles apply to remote workers. In one, an employee 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, the employee 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, the employee is not relieved of their duties and has to be paid for their break time.
In another example, an employee works from home and is allowed flexibility to set their own schedule. They start works at 7:00 a.m., take a one-hour break from 8:00 a.m to 9:00 a.m. to get their children ready for school, and resume 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 the employee is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.
The FAB also looks at how some of the DOL's rules around lactation breaks would apply to remote workers.
For example, it says that the requirement that breastfeeding mothers have a place to express breast milk that is "shielded from view" means employers must ensure that employees are free from observation by any employer-provided or -required video system, including a computer camera, security camera or web-conferencing platform, when they are expressing breast milk - regardless of the location they are working from.
Furthermore, if a remote employee chooses to attend a video meeting or conference call - even if off camera - generally the employee is not relieved from duty and, therefore, must be paid for that time, the FAB states.
To be eligible for FMLA leave, employees must (among other things), be employed at a worksite where 50 or more employees are employed within 75 miles.
When an employee works remotely, their worksite for FMLA-eligibility purposes is the office to which they report or from which their assignments are made, the FAB says.
The FAB offers an example of how this can result in a remote employee being eligible for FMLA leave even if they do not work within 75 miles of the company headquarters from which they receive their assignments.