Helen Saulnier 
On February 9, 2023, the U.S. Department of Labor (“DOL”) issued Field Help Bulletin 2023-1 (the “FAB”), which directs company officials liable for enforcement on the application of the Truthful Labor Criteria Act (“FLSA”) and Family members and Medical Go away Act (“FMLA”) to teleworking workforce. This steering offers beneficial perception to companies on the DOL’s interpretation of many issues, such as: (1) payment of teleworking workers underneath the FLSA, (2) protections for nursing workforce when operating remotely, and (3) eligibility guidelines for teleworking workforce beneath the FMLA. The intent of the new assistance appears to be aimed at reminding businesses that personnel who telework continue being protected by the protections of both equally the FLSA and the FMLA.
Telework and the FLSA
In the FAB, the DOL reminds the agency officers (and any employer examining it) that no matter of do the job location, brief breaks (20 minutes or a lot less) normally are counted as compensable hrs labored, whereas, for a longer time breaks “during which an staff is absolutely relieved from obligation, and which are long sufficient to allow [the employee] to use the time proficiently for [their] possess reasons[,] are not hrs labored.” The DOL clarifies that these “longer breaks” can be anything at all more than 20 minutes and delivers the subsequent example:
Instance #2: Staff B operates from household and is authorized overall flexibility to set their own program. Staff B begins functions at 7:00 a.m., will take a one particular-hour split from 8:00 a.m. to 9:00 a.m. to get their children ready for university, and resumes perform at 9:00 a.m. The time period among 8:00 a.m. and 9:00 a.m. is not operate time below the FLSA due to the fact Staff B is fully relieved from obligation, chooses when to resume function, and is in a position to effectively use the time for their have uses.
The FAB also reminds employers that underneath the FLSA, companies have to shell out for all time they know or should know is staying worked. Overall, this is a great reminder to all companies that having insurance policies in place that focus on a remote worker’s potential to set his or her very own timetable is essential, as is possessing system in place wherever all staff members accurately observe time worked (or, not labored).
Protections for Nursing Moms Doing the job Remotely
The FAB also reiterates the FLSA’s necessity that employers supply lined staff “reasonable crack time for an personnel to convey breast milk for these kinds of employee’s nursing baby for 1 calendar year soon after the child’s birth” and give “a place, other than a toilet, that is shielded from look at and no cost from intrusion from coworkers and the community, which might be utilised by an staff to express breast milk.” The FAB notes that this protection is prolonged to teleworking employees, no matter whether the personnel is teleworking from their household or an additional location. This suggests that regardless of where by the personnel is working, the worker need to have a position to specific breast milk that is “shielded from view”, indicating absolutely free from observation by any employer delivered or needed video clip system, like a laptop digicam, security camera, or website conferencing platform, when they are expressing breast milk no matter of the spot they are operating from. Though presumably this is a not an onerous task when an staff is doing the job from residence, other worksites (these kinds of as a client worksite) should really not be neglected.
Telework and the FMLA
Less than the FMLA, qualified staff of included businesses are entitled to choose work-secured depart for specified family members and healthcare reasons. The DOL reminds us in the FAB that to use FMLA go away, an staff have to operate for a covered employer and be eligible for go away. Staff are eligible for FMLA depart when they have worked for the employer for at least 12 months have at the very least 1,250 hours of services for the employer all through the 12-thirty day period period promptly previous the go away and do the job at a area the place the employer has at least 50 workforce in just 75 miles. The FAB notes that when an personnel teleworks, their worksite for FMLA eligibility applications is the office environment to which they report or from which their assignments are manufactured. In other words, if 50 workers are employed within just 75 miles from the employer’s worksite (the locale to which the employee experiences or from which their assignments are designed), the worker satisfies that FMLA eligibility prerequisite. The FAB presents the subsequent case in point to illustrate the interplay among remote perform and the FMLA:
Instance #5: Staff B will work in details processing for an promoting business headquartered in a huge city and teleworks from her household additional than 75 miles absent. Several of the employees in Personnel B’s section telework from distinctive metropolitan areas and states. All teleworking personnel are assigned assignments for data analysis from the manager who functions at the business headquarters. Worker B’s worksite, for FMLA eligibility dedication, is the company’s headquarters. The company’s headquarters is also, beneath the FMLA, the worksite for the info processors in Worker B’s section who telework from different cities and states but report to and get assignments from their supervisor at headquarters. There are 300 whole workers who operate at or inside of 75 miles of the company’s headquarters. So, the employee is considered to be employed at a worksite in which 50 or additional staff members are utilized by the employer in just 75 miles of that worksite even even though she herself does not work in just 75 miles of the company headquarters.
California companies should really remember that when up to date in January of 2021, the California Family members Legal rights Act (“CFRA”) removed the requirement that staff members work in a 75-mile radius of just about every other to be lined by the CFRA. As such, the DOL’s guidance is specific to individuals employer’s issue to the FMLA. As always, when applying guidelines, California businesses have to ensure individuals policies comply with the federal regulation, but also with the generally extra stringent California legislation.
