On February 9, 2023 the Wage and Hour Division of the United States Department of Labor (WHD) issued a Field Assistance Bulletin (FAB) providing guidance to WHD field staff regarding proper compensation under the Fair Labor Standards Act (FLSA) and proper leave under the Family and Medical Leave Act (FMLA), for employees who telework or work away from an employer’s facility.

While the FAB is not law, it contains what the WHD believes is important enough to direct its enforcement agents to consider. As such, employers are well-advised to address the issues in the FAB in preparation for when the WHD knocks on the door.

FLSA

The FAB emphasizes that overtime and other FLSA rights apply regardless of where an employee works. It then discusses five common FLSA issues as they apply to teleworkers:

1. The workday is determined by how much time the employee actually spends on their “principal activity” (the activity the employee was hired to perform) regardless of scheduled shift or hours.
2. Breaks of less than 20 minutes are compensable - regardless of where the work is performed.
3. Lunch breaks of 30 minutes or more, where the employee is completely relieved from work, are not compensable worktime.
4. Determination of when the employee is relieved from work at the end of the day, which generally occurs when employees are told in advance that they will not have to resume work until a specified time—or when the employer allows employees to freely choose the time to resume work, and that...

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