Many of us thought working from home in our pajamas was over. Well, it’s not. On February 9, 2023, the Department of Labor (DOL) issued a Field Assistance Bulletin on teleworking.
The good news is that employers are not required to allow employees to work from home. The bad news is that during the pandemic many employees found they preferred working in their pajamas from the comfort of their own homes. Stay strong–if you have employees who want to work from home you may make it the exception, not the rule.
A major challenge is counting telework hours. Best practices and the DOL point to the definition of what is considered “work time.” Under the Fair Labor Standards Act (FLSA), the workday starts when the employee commences their first “principal activity” and ceases when they stop doing those principal activities. The DOL reminds employers that it is reasonable to allow employees to get up, walk around, stretch their legs, and take a break. If the break is less than 20 minutes, it’s still work time. If it’s more than 30 minutes, it is probably not compensable.
So, what happens in the twilight zone between 20 and 30 minutes? That’s a question that has been plaguing FLSA scholars for more than 75 years. No one is quite sure. Safest bet is to only count as non-compensable breaks of thirty minutes or more. But remember, there is no constitutional right to a break or a lunch period. If an employee takes too many breaks they can be disciplined; you can’t dock their pay for past transgressions, but you can discipline them up to and including termination. The onus is always on the employer. For example, an employee turns in a timesheet with 30 and 45-minute breaks. If the employer knows or has reason to believe that work is being performed during the break time, the time must be counted as hours worked regardless of whether the employee asks for compensation or not. For a break to be non-compensable, an employee must be completely relieved from duty. An occasional phone call is ok but constant phone calls mean the employee is not totally “relieved” and thus unable to use their time effectively for their own.
Let’s look at a modified DOL example. Momma Bear starts telework every day at 7:00 a.m. At 8:00 a.m. she gives the baby bears breakfast and takes them to school. By 9:00 am she’s home and back to work. From 12:00 – 1:00 p.m., she tunes in to Betty Bear’s Pilates for Pregnant Bears and works out. Yup, she’s pregnant with number four. She doesn’t take lunch, she simply eats porridge at her desk. At 3:00 p.m. she goes to the school and picks up her cubs. She’s usually home by 3:25 p.m. and works until 5:30 p.m. How many hours are compensable? Probably 8.
As Momma Bear’s pregnancy progresses, she may need to stop more often during the day and put her paws up. How does she count that extra break time? She doesn’t as long as each break is less than twenty minutes. The Pregnant Workers Fairness Act (PWFA) envisions extra break time for pregnant workers. Then for a year after giving birth, if Momma Bear chooses, she can express milk for her baby on her breaks.
Finally, do teleworkers get FMLA leave? Of course they do. Even if the majority of your employees telework, for purposes of the fifty-employee threshold rule, teleworkers are considered to work at “headquarters” or the location they would typically report to every day. If the company employs more than 50 people who would all “report” to the same headquarters, they are entitled to FMLA leave.
Best practices dictate having a teleworking policy outlining when working from home is appropriate, that a written agreement of teleworking terms is required, and the length of time the employee will be allowed to work from home. If feasible, employees should have to come in at least one or two days a week so they don’t forget what office work is like. Mickey Mouse and his Disney friends now have to go back to work to collaborate and so should your employees.
Now put on your pajamas and take a twenty-minute nap.
If you have questions regarding the DOLs recently issued Field Assistance Bulletin, contact Madalene A.B. Witterholt or another member of the Labor & Employment Practice Group.