Employment & Labor Insider

One of the biggest challenges employers with remote workers face is how to comply with wage and hour laws.

Yesterday, the U.S. Department of Labor issued a Bulletin discussing the Fair Labor Standards Act, lactation accommodation (which, believe it or not, is part of the FLSA), and the Family and Medical Leave Act as they apply to employees who work from home or other remote locations. The Bulletin is an easy read and not too legalistic. Here is a summary, with some tips of my own:

Fair Labor Standards Act

Very generally, the FLSA requires that non-exempt employees be paid for all hours worked, that they receive at least the federal minimum wage ($7.25 an hour), and that they get overtime pay for any hours worked in excess of 40 in a workweek. (The FLSA also addresses child labor, which we won't get into here.)

More information about the basics of the FLSA is available here (minimum wage) and here (overtime).

The FLSA regulations contain many more details, including when break time is "compensable" and when it is not. The general rule is that short-ish breaks are considered "time worked" and have to be paid, but breaks of 30 minutes or more -- during which the employee is relieved of all work -- do not have to be paid.

(The FLSA does not require employers to provide breaks at all, but most employers do, and many state wage and hour laws require it.)

If a break is roughly 20 minutes or less, it should be considered "time worked" and should be paid. If an employee on a 30-minute-or-longer break is interrupted by calls, emails, or other work-related things, the "break" should be paid. If, on the other hand, the employee spends the 30-minute-or-longer break walking the dog (leaving the cell phone in the house, so no chance of a work-related interruption), or being completely absorbed in a novel, then the break time would be unpaid.

That's what the DOL says. What follows is from me. If you have have non-exempt remote workers, consider adopting a very precise timekeeping system so that you can accurately determine the hours worked. It may also make tracking time easier if you require non-exempt employees to have regular work schedules with scheduled break times. I also think it's a good idea to emphasize to non-exempt employees that you really, really, truly, honestly WANT them to report all the time that they work. Some great employees will do extra work and not bother to put the time down because they were "glad to do it -- no problem at all!" Employers should make sure that all employees -- perhaps, especially the conscientious ones -- accurately post all of their time worked.

It's fine to have a policy prohibiting employees from working unauthorized overtime. But be sure your supervisors and managers are aware of the policy and comply with it. Also, don't "dock" an employee for working unauthorized overtime. Instead, treat it as a progressive disciplinary issue (up to and including termination of employment) while still paying the overtime.

Lactation accommodation

The Nursing Mothers Act requires employers to provide non-exempt employees with unpaid breaks and a private, clean location in which to express milk during the workday, and a place to store the milk until she goes home. Although the breaks are generally unpaid*, if the mother works during her lactation breaks, the time has to be paid. The DOL had a great example of a work-from-home nursing mom who is taking a lactation "break" while doing a teleconference with the camera on her computer turned off. If that happens, she's still working and needs to be paid.

*Lactation breaks are generally unpaid under federal law. But state laws may require that the time be paid.

I wrote here about the PUMP for Nursing Mothers Act, which will expand the Nursing Mothers Act. Generally, if a remote worker is at home, she shouldn't have any trouble finding a private, clean location to express milk or a refrigerator in which to store it. (Of course, she may be able to nurse the baby directly if she's at home.) If the worker is offsite at another location, the DOL's position is that the employer will need to see that she has appropriate breaks, and lactation/storage space, at the site.

Family and Medical Leave Act

The big employer challenge with remote workers and the FMLA is, in my opinion, intermittent leave. Intermittent FMLA leave is unpaid, and it also counts against the employee's 12-month allotment. It's hard to track intermittent leave even when the employee is onsite, but it's 100 times harder if the employee is remote. Here are a few tips that may help:

• If the employee is working, then he is by definition not on FMLA leave. Work time must be paid, and must not be charged against the employee's allotment of FMLA leave. That goes for remote work as well as in-office work.
• Intermittent FMLA leave is unpaid. Even with FLSA-exempt employees, the FMLA time can be docked from the employee's normal salary. (Normally, exempt employees are not subject to partial-day docking.)
• Which brings me to my next point. Make sure that employees who work remotely -- whether they are non-exempt or exempt -- accurately and precisely record their intermittent FMLA leave time. That is the only way you will be able to keep up with it.
• With non-exempt employees, also require them to accurately and precisely record their time off for non-FMLA-qualifying reasons, such as picking the kids up from school, getting an early start on fixing dinner, taking the car in for service, or chatting with a very talkative friend who happens to call in the middle of the workday. That time may or may not be compensable (see Fair Labor Standards Act, above), but it is definitely not FMLA time.

None of what I just said is addressed in the DOL Bulletin. But the Bulletin has a good discussion of another tricky issue: FMLA eligibility for remote workers. The general rule is that employees are not eligible for FMLA leave (even if they work for a "covered employer") if there are fewer than 50 employees within a 75-mile radius of the worksite.

("Worksite." How primitive.)

BUT with employees who work out of their homes, their "worksite" for FMLA purposes is usually not the home. Instead, it is the place from which the employees get their work assignments or direction. So, if the supervisor is in a 500-employee office in Manhattan and the worker is home alone in Paris, Illinois, that worker is considered part of the Manhattan office -- and therefore eligible for FMLA leave -- not part of the one-employee "Paris (Illinois, not France) office."

In the real world, employers are way ahead of both the DOL and me. At a webinar I presented in January, I went over this rule, and one of the attendees asked, "But what if the supervisor who provides assignments or direction works from home, too?" Great question, and I'm not sure of the answer. My best guess is that if the supervisor (or the supervisor's supervisor) gets direction from somebody in an office somewhere, then that office would still be considered the "worksite." If any of you all disagree with me, please feel free to say so in the comments.

Marty Walsh to resign

Off topic: Secretary of Labor Marty Walsh is resigning to become Executive Director of the National Hockey League Players Association. I'm sure we'll be hearing more about that from our sports law guru, Chris Deubert. According to the New York Post, former New York City Mayor Bill DeBlasio is interested in the Secretary of Labor job.