The U.S. Department of Labor (DOL) has released a Field Assistance Bulletin (FAB) on the compensability of short breaks under the Fair Labor Standards Act (FLSA). The FAB provides guidance to employers, employees, and the DOL’s field staff on how to handle short breaks for non-exempt employees who work remotely. It is effective immediately and is applicable to all employers and employees covered by the FLSA.
The FAB indicates that any break 20 minutes or less, whether taken at home or the employer’s workplace, must be treated as compensable time, regardless of its location or purpose. The DOL’s reasoning is based on its own interpretive regulations which provide that all time in an employee’s workday is presumptively compensable, except for bona fide meal periods that are 30 minutes or longer. The DOL does recognize that long breaks, such as a one-hour break to get children ready for school, are non-compensable. The FAB provides a disincentive for employers to allow non-exempt employees to work remotely, as shorter and more common breaks must be compensated.
The FAB is not binding law, but courts may rely on it as persuasive authority. It remains to be seen whether courts will adopt the DOL’s view, or take a more nuanced approach to the compensability of teleworking breaks based on their nature and purpose, rather than solely on their length.
Employers should establish clear expectations for nonexempt employees about when they are expected to work and how to manage and track their breaks. It is also recommended that employers carefully review their policies and practices to ensure compliance with wage and hour laws, particularly as more employees continue to work remotely.
If you have any questions about this Alert, we encourage you to reach out to your Shulman Rogers contact for solutions and recommendations for addressing these issues.
To read the full text of Field Assistance Bulletin No. 2023-1, click here.
Our recent alert on FMLA eligibility for remote employees can be accessed here.
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.
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