The U.S. Department of Labor (DOL) has issued new guidance concerning compensable time for remote workers. The guidance attempts to clarify certain issues that frequently arise with remote work, and can be found here: 2023-1.pdf (dol.gov).
One of the biggest challenges to employers in managing remote nonexempt employees is record-keeping. The Fair Labor Standards Act (FLSA) requires employers to keep accurate records of hours worked each day for nonexempt employees. Those rules apply whether the employee is working at home or at some other remote location.
The FLSA requires employers to pay nonexempt employees for all hours worked. “Hours worked”, however, can include break time or waiting time in some instances. Breaks of 20 minutes or less must be counted as hours worked. Meal breaks of at least 30 minutes are not counted as work time if the employee is completely relieved of duty during that period. If, for example, the employee is answering work-related calls or emails during the meal break, it is compensable work time. The DOL says that “to be completely relieved from duty, the employees must be told in advance that they may leave the job and will not have to commence work until a specified hour has arrived.”
The rules concerning whether waiting time is compensable are frustratingly vague and are fact-specific. The DOL does not clarify what qualifies as compensable waiting time when a nonexempt employee is merely idle. Employers must tailor their remote worker record-keeping to the particular needs of each business, but should give clear guidance to the remote employees concerning the employer’s expectations for waiting time and breaks.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.