Feds Address Work-From-Home Rules, Time Keeping

Working from home has brought a series of challenges for employers, including how to measure compensable time. The Department of Labor (DOL) issued a related Field Assistance Bulletin in February to help clarify related issues.

The good news: Employers are not required to allow employees to work from home. The bad news: Many employees prefer working from home.

The DOL has defined 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 and take a break. If the break is less than 20 minutes, it is still considered work time. If the break is more than 30 minutes, it is likely not compensable.

What happens if the break is between 20 and 30 minutes has been the subject of FLSA debate for more than 75 years. The safest bet is to only count as non-compensable breaks of 30 minutes or more. For a break to be non-compensable, an employee must be completely relieved from duty. An occasional phone call is acceptable but constant phone calls, emails or other tasks mean the employee is not totally relieved of their work duties and is therefore unable to use their time effectively for personal matters.

A DOL example highlights the issue of compensable hours within planned non-work time. A fictitious employee starts teleworking every day at 7 a.m. At 8 a.m., she gives her children breakfast and takes them to school. By 9 a.m., she is home and back to work. From noon to 1 p.m., she takes an exercise break. She then eats lunch while working. At 3 p.m., she leaves to pick-up her children from school. She is usually back home by 3:25 p.m. and continues working until 5:30 p.m. How many hours are compensable in her workday? Probably eight.

Finally, teleworkers also qualify for Family and Medical Leave Act (FMLA) leave. For purposes of the 50-employee threshold rule for the FMLA to apply, teleworkers are considered to work at “headquarters” or the location they would typically report to if they went into the office.

Large employers, like Disney, have even found it hard to get employees back to working and collaborating at the Happiest Place on Earth. Best practices dictate having a discretionary teleworking policy outlining when working from home may be appropriate and that teleworking is allowed on a case-by-case basis. Any teleworking arrangements should have clear expectations as to the duration of telework, the times of day the employee is expected to be “on duty” and time keeping protocols. Teleworkers should, when feasible, be required to routinely come into the office and collaborate with their fellow workers and supervisors.

This article first appeared in The Journal Record on March 31, 2023, and is reproduced with permission from the publisher.


Associated People:

Madalene A.B. Witterholt

Practice Area:

Labor & Employment