by The U.S. Department of Labor (DOL) recently reminded its enforcement team that nonexempt employees who work from home or otherwise telecommute are entitled to paid breaks just like nonexempt employees working at an employer’s worksite are. In a Field Assistance Bulletin issued on February 9, 2023, the DOL affirmed that it considered breaks of less than 20 minutes taken by a nonexempt employee to be compensable time worked (i.e., paid time), no matter where the employee works.
Field Assistance Bulletins (FABs) provide the DOL’s Wage and Hour Division (WHD) investigators and staff with guidance on enforcement positions and clarification of policies or changes in the policy of WHD. They are internal agency documents that are available to the public. FABs do not replace the statutes or regulations governing wage and hour practices enforcement but provide insight into how the agency understands the correct application of the laws and regulations.
The recent Bulletin, FAB No. 2023-1, provides guidance on the Fair Labor Standards Act (FLSA) compensable time rules for telecommuting employees. It states, “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….” The Bulletin states that these kinds of breaks benefit the employer by reducing employee fatigue and helping the employee maintain focus.
Employers are expected to know when nonexempt employees (i.e., employees subject to the FLSA’s overtime rules) are working and the length of any breaks from work. This includes unscheduled time worked and unscheduled breaks. The Bulletin states that an employer may meet the expectation by providing a reasonable reporting procedure for non-scheduled time and then paying employees for all reported work hours, even hours not requested by the employer.
Keeping accurate time records is essential in this context since breaks longer than 20 minutes may not be compensable time worked if the employee is completely relieved of duties and the break is long enough for the employee to use the time effectively for their own purposes.
The Bulletin also discusses breaks for nursing mothers and how to determine whether a telecommuter is eligible for Family and Medical Leave Act coverage. The Bulletin can be found at https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-1.pdf.
