Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On February 9, 2023, the U.S. Department of Labor Wage and Hour Division issued Field Assistance Bulletin No. 2023-1 (FAB) to provide guidance on tracking hours worked by employees who telework. While the FAB largely repeats longstanding principles regarding what constitutes hours worked under the Fair Labor Standards Act (FLSA), it provides a useful reminder that an employer’s obligation to maintain an accurate record of hours worked applies even when its employees are working remotely.
The FAB reminds employers that “hours worked” generally includes all time spent by an employee between their first principal activity of the day and their last principal activity of the day. The FAB considered four scenarios in which breaks from active work may challenge this general rule:
- Meal Periods: The FAB confirms the DOL’s longstanding view that bona fide meal periods (typically 30 minutes or more) in which an employee is completely relieved from duty for the purpose of eating regular meals are not hours worked.
- Short Breaks: The FAB advises that short breaks of 20 minutes or less are compensable hours worked whether an employee is at the employer’s worksite or working from home. While an employer may speculate that its teleworking employees are more likely to take a greater number of short breaks throughout the day to attend to personal matters than do their in-office colleagues, the FAB emphasizes that such short breaks still constitute hours worked.
- Off-Duty Periods: The FAB explains that off-duty periods that are longer than 20 minutes may be excluded from hours worked under the FLSA if the employee is completely relieved from duty and able to use the time effectively for their own purposes. To be considered completely relieved from duty, the employee must be informed that they may leave the job and that they: (a) will not be required to commence work until a specified time more than 20 minutes later; or (b) may freely choose when they will resume working.
- Break Time for Pumping Breast Milk: The FAB reminds employers that the FLSA requires employers to provide employees reasonable break time to express breast milk. The FLSA does not require employers to compensate nursing employees for such breaks. When an employer provides compensated breaks, however, an employee who uses that break time to pump must be compensated for the break.
The key takeaway from the FAB is that the rules governing when breaks must be treated as hours worked do not change just because an employee is working from home. When managing a remote workforce, an employer should set clear expectations about when nonexempt employees are expected to work and how they should manage and track their breaks. There is no one-size-fits-all approach to these complex issues. For example:
- Some employers may prefer to manage their employees’ time strictly and to keep them on a regular schedule. For example, an employee may be scheduled to work 8:00 a.m. to 5:00 p.m. with a one-hour “off the clock” meal period from 12:00 p.m. to 1:00 p.m. and two 15-minute paid rest breaks, one in the morning and one in the afternoon. Such employers may instruct their employees that: (a) they are not allowed to “make up” for non-work interruptions by working outside authorized hours or to aggregate several short breaks and treat them as one long break; and (b) excessive incidents of non-work interruptions during scheduled work hours may be treated as a disciplinary issue and/or lead to revocation of the right to work remotely.
- Other employers may be willing to give employees flexibility to set their own schedule, subject only to an expectation that they work a specified number of hours per day. The FAB provides an example of this approach, describing an employee who chooses to work from 7:00 a.m. to 8:00 a.m. before taking a break to get their children ready for school and then resuming work at 9:00 a.m. Because the employee could freely choose when to resume working after attending to their children, the off-duty period between 8:00 a.m. and 9:00 a.m. was not considered hours worked. To avoid confusion between compensable short breaks and non-compensable off-duty periods, an employer may choose to instruct employees that when they choose to take an off-duty period for personal reasons, they must “clock out” and stop working for at least 30 minutes.
- Still other employers may choose to take a hybrid approach, establishing certain “core hours” when teleworking employees are required to work, but giving them the flexibility to choose when to complete other work, including when to take off-duty breaks.
The FAB also reminds employers that if they know or have reason to believe that work is being performed, the time must be counted as hours worked, even if the employee is working from home. Favorably citing Field Assistance Bulletin No. 2020-5, issued during the prior administration, the DOL explained that an employer may satisfy its obligation by providing a reasonable procedure for reporting time and then paying employees for all reported hours of work, even hours not scheduled or authorized by the employer in advance.