Short breaks of fewer than 20 minutes taken by hourly, non-exempt employees who telework or must be counted as compensable time under the Fair Labor Standards Act — as is the case for employers working from an employer’s own location — Jessica Looman, principal deputy administrator of the U.S. Department of Labor’s Wage and Hour Administration, wrote in a Field Assistance Bulletin published Thursday.
“Whether teleworking at home or working at the employer’s facility, employees often take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities,” Looman said. “By their very nature, such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.”
Bona fide meal periods, typically 30 minutes or longer, in which employees are completely relieved of duty for the purpose of eating regular meals should not be considered compensable, per the bulletin.
The same is true of breaks longer than 20 minutes that permit employees to use that time for their own purposes and completely relieve them of their duties, provided that employees are told in advance that they may leave the job and will not have to commence work until a certain time. Alternatively, Looman said, the employee can be relieved from duty if the employer allows the employee to freely choose the time at which they resume work, and the intervening time is long enough for the employees to use for their own purposes
Looman provided a set of examples to illustrate the guidance. In one, a nonexempt employee who teleworks and who may set their own schedule begins work at 7 a.m. The employee takes a one-hour break to prepare their children for school, then resumes work at 9 a.m. The hour-long break in this scenario does not need to be counted as compensable time under the FLSA, she wrote.
Rest breaks for nursing employees who telework
The FLSA’s protections allowing for nursing employees to take break time to pump also apply to an employee’s worksite regardless of whether they telework or work from the employer’s site, Looman said in the bulletin.
This also applies to cases in which an employee works from another site, such as a client’s site. The employer in this scenario must provide an appropriate place for the employee to pump that is shielded from view and free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform.
DOL’s guidance acknowledged the passage of the PUMP Act in 2022 in footnotes, stating that the law does not change the basic requirements of the FLSA but does include exemptions from its reasonable break time and space requirements for crewmembers of air carriers and certain employees of rail carriers and motorcoach service operators. On Feb. 2, DOL said it would work to alert employees to the PUMP Act’s provisions.
How the FMLA applies to teleworkers
The guidance also addressed how telework arrangements interact with the Family and Medical Leave Act’s eligibility requirements. For FMLA purposes, the employee’s personal residence is not a worksite, according to Looman. “When an employee works from home or otherwise teleworks, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made,” she said.
Looman used the example of an employee who teleworks from their house, located more than 75 miles away from their employer’s headquarters. For FMLA purposes, the employer’s headquarters is considered the employee’s worksite. The employer also has 300 total employees who work at or within 75 miles of the company’s headquarters. It would therefore meet the FMLA’s eligibility requirement that the employee work at a location where the employer has at least 50 employees within 75 miles of the employee’s worksite.
“For FMLA eligibility, the determination of the worksite for an employee who teleworks is fact specific and will be based on factors, such as where the employee reports to work or the location where the employee’s assignments are made,” Looman said.
