New Guidance On Telework Under The FLSA And FMLA
March 2, 2023
The Department of Labor (DOL) has issued a new Field Assistance Bulletin addressing how certain principles of the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) apply to employees who telework. While the guidance is written for the DOL’s staff, it provides useful information for employers about how the DOL will apply these laws to teleworking employees.
The DOL reviews basic FLSA principles of determining how many hours an employee works each day and explains how those principles apply to the teleworking employee. The DOL explains that no matter where work is performed, time must be counted as hours worked if the employer knows or has reason to believe that work is being performed by the employee.
The Bulletin addresses in detail breaks for teleworking employees, including guidelines for employees who are nursing an infant. It also addresses an employer’s obligation to ensure employees are reporting time worked during non-scheduled times, explaining: “An employer may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by providing a reasonable reporting procedure for non-scheduled time and then paying employees for all reported hours of work, even hours not requested by the employer.” More information on how to track teleworking employees’ hours of work can be found in a Field Assistance Bulletin from 2020.
The new DOL Bulletin also discusses FMLA eligibility for teleworking employees. It explains that a remote employee’s residence is not a worksite and that instead, whether a remote employee is eligible for FMLA should be determined based upon the size of the worksite to which they report or from which their assignments are made. “Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement. The 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.”
If you have employees working remotely, whether at home or other locations, we encourage you to review the DOL’s new Field Bulletin. As always, if you have question about this information, please contact a KZA attorney.
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