At the outset of the COVID-19 pandemic, employers transitioned millions of employees to remote work. In many industries, the transition back to the office has been slow or nonexistent, drastically reducing the number of American workers who physically report to a jobsite or office each day to perform their jobs. Remote work implicates a broad spectrum of employment law issues, prompting the U.S. Department of Labor’s Wage and Hour Division to issue recent guidance about how to accurately track non-exempt, remote employees’ worktime and how to determine remote employees’ worksite for purposes of Family and Medical Leave Act eligibility.
Tracking Worktime
The DOL’s bulletin first addresses teleworking under the Fair Labor Standards Act and emphasizes the employer’s obligation to pay nonexempt (hourly) employees for all the time they work each day. This includes compensation for breaks that last up to twenty minutes. The DOL explained that “such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.” Office employees typically spend such breaks using the restroom, making a coffee, eating a snack, taking a personal call, or catching up with coworkers. For remote employees, these breaks may be spent on various types of personal or household tasks such as starting or folding laundry, unloading the dishwasher, walking the dog, or beginning dinner. Businesses that track their remote employees’ minutes worked and productivity through software or other technological means should be mindful that short breaks are compensable, even when employees spend those breaks performing nonwork tasks.
In contrast, breaks lasting longer than 20 minutes, such as meal breaks, are generally not compensable under the FLSA so long as the employee is completely relieved from all work duties during the break. To be uncompensated, employers must ensure employees are not interrupted with work during the breaks so that employees are able to effectively use such time for their own purposes. If an employer has reason to believe work is performed during an unpaid break (e.g., the employee answers frequent work calls or responds to work emails), the break time must be compensated as worktime. As a best practice, unpaid breaks should be scheduled so employees know when they are expected to return to work and that they will not be expected to perform any work until that specified time has arrived. Employers should ensure they have a reasonable reporting procedure for employees to report if they ever work during non-scheduled time and must pay employees for all reported hours of work, even such hours that were not requested by the employer. Beyond the FLSA, employers should also review local and state employment laws for the locations where remote employees are physically working (i.e., their residences), which may require employees to be compensated for all breaks, including breaks lasting longer than 20 minutes.
Tracking Worksites
The DOL’s bulletin also addresses how to determine a remote employee’s worksite for purposes of FMLA eligibility. As a refresher, employees are generally entitled to FMLA leave once they have worked at least 12 months for the employer, worked 1,250 hours during the 12-month period immediately preceding the leave, and work at a worksite where the employer has at least 50 employees within 75 miles. A remote employee’s worksite is not the employee’s residence for purposes of determining FMLA eligibility. Instead, the worksite is the office to which the remote worker reports or from which the remote worker’s assignments are made. The DOL clarified, “[t]he count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who telework and report to or receive assignments from that worksite.” This means employers who have remote employees reporting to a worksite or receiving their assignments from a worksite must include those remote employees in their headcount when determining whether they have at least 50 employees within 75 miles for purposes of FMLA eligibility. Including remote employees in the calculation of the total number of employees at a worksite could greatly increase the number of employees who are eligible for FMLA leave in the company. This method of calculation also prevents employers from avoiding FMLA obligations by simply transitioning enough employees to remote work so that the total headcount at a physical worksite (and within 75 miles of it) falls below 50 employees.
Legal Compliance
Permitting remote work may be necessary for your business and can provide the enticement needed to land top talent, but these arrangements raise a host of legal issues that must be successfully navigated to avoid costly litigation. The employment lawyers at Poyner Spruill LLP are available to help you maintain compliance with federal, state, and local laws if you have remote workers or are considering authorizing remote work or alternative work environments.
