On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin addressing several vexing questions pertaining to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs teleworkers. Field Assistance Bulletins do not have the effect of law, but nonetheless are important statements of DOL policy and statutory interpretation.
The FLSA requires payment of at least the federal minimum wage, payment to non-exempt employees for all hours worked, and overtime compensation when applicable. Starting with the premise that employers must pay wages for all hours actually worked by nonexempt employees, not merely hours during their regularly scheduled shifts, and may only treat breaks as non-compensable if they are longer than 20 minutes and free from all interruption, the DOL underscores in the Bulletin that these principles apply when work is performed in a non-exempt employee’s home or otherwise away from the employer’s premises. For instance, a non-exempt employee working from home may still take short breaks to use the restroom, refill coffee, or stretch their legs, just as they would if working at the employer’s premises, and must be compensated for these short breaks.
The Bulletin acknowledges that managing bona fide meal periods may be more challenging when a non-exempt employee is working from home. During these longer unpaid periods, the non-exempt employee must be...
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