The United States Department of Labor has issued a Field Assistance Bulletin concerning telework under the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”) discussing work at home and/or remote work.[1]  While not binding law, the Field Assistance Bulletin provides guidance to Department of Labor staff on how to apply the FLSA and FMLA.

As employers will recall, under the FLSA and similar state statutes, nonexempt employees must be paid for all hours worked, regardless of where the work is performed.  With remote and hybrid work becoming the norm, absent the implementation of a reporting procedure to track hours worked, employers may face unexpected liabilities.  Pursuant to the Field Assistance Bulletin, “[i]f the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked.”  This presents difficulties for employees working remotely.  If an employee is working remotely and interrupted during their lunch hour, or logs in at home outside of regular business hours, this time may be compensable.  To ensure employees are being properly compensated, employers should implement a reporting procedure for non-scheduled time.

Further, employers should also ensure that they are providing an appropriate place for employees to pump breast milk when an employee is working off the employer’s premises.  While this may not be an issue for employees working from home, it may pose a problem if the employee is working remotely from a client’s worksite.

With respect to the FMLA, the Field Assistance Bulletin clarifies one of the eligibility requirements.  An employer may be subject to the FMLA if they have 50 or more employees employed within 75 miles of their worksite.  For employers with remote workers, they may satisfy this element without even knowing it.  As the Field Assistance Bulletin makes clear, the worksite is “the office to which [the employees] report or from which their assignments are made.”  If an employer is headquartered in New York, but hires employees who telework from different cities and states, the employer may still be subject to the FMLA even though the employee never set foot on the employer’s premises.

Employers who permit their employees to work remotely, or are considering a transition to remote work, should review their policies and procedures to ensure they are in compliance with state and federal law.  If you have any questions, you should contact Forchelli Deegan Terrana LLP’s experienced Employment & Labor department.