Field Assistance Bulletin
On February 9, 2023, the United States Department of Labor, Wage and Hour Division (“WHD”) issued Field Assistance Bulletin No. 2023-1 (the “Bulletin”), providing guidance to employers of non-exempt teleworking employees under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”). Essentially, the Bulletin addressed when an employer is required to pay non-exempt teleworking employees for breaks, how protections under the FLSA should be applied to employees who are nursing and working remotely, and how the FMLA’s rules on eligibility apply to remote employees.
Short breaks taken by non-exempt employees must be paid as compensable time. The Bulletin stated that “[w]hen employees take short breaks of 20 minutes or less, the employer must treat such breaks 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.”
Meal breaks taken by non-exempt employees are not compensable time if relieved of all duties. The Bulletin explained that employees’ “bona fide meal breaks (typically 30 minutes or more)” are not compensable hours worked if employees are relieved of their duties and effectively allowed to use their meal breaks for their own purposes. Importantly, this is true whether the employee performs their work at the employer’s location or remotely.
Break time and privacy for non-exempt employees to express breast...
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