On February 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) issued Field Assistance Bulletin No. 2023-1 (FAB) to help employers (1) better understand their wage and hour obligations under the Fair Labor Standards Act (FLSA) with regard to their non-exempt teleworkers; and (2) how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees telework. Although the FAB does not break new ground or change the FLSA or the FMLA and their regulations, it does provide guidance on the DOL’s enforcement positions going forward.
Highly summarized, the FAB confirms that the FLSA and FMLA requirements apply whether non-exempt employees work at a remote work location or a designated work site. Specifically, the FAB emphasizes that short breaks of 20 minutes or less are to be counted as compensable hours worked, regardless of whether the employee works from home, the employer’s worksite, or some other location that is not controlled by the employer. According to the FAB, employees often take short breaks to go to the bathroom, get a drink, stretch their bodies, and perform other similar activities. “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.”
In contrast, the FAB states that meal breaks -- typically 30 minutes or more -- are not counted as compensable hours, provided employees are “completely relieved from duty...
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