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DOL and NLRB Focus on Telework

April 20, 2023
How employers record hours and use online tracking come under scrutiny.

It has taken a while for federal agencies to catch up with the telework trend, but some of them are making up for lost time by reinforcing their requirements, and that includes the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB).

In February, the DOL Wage and Hour Division (WHD) issued a new Field Assistance Bulletin (FAB) regarding how remote employees should be paid under the Fair Labor Standards Act (FLSA) and when they are eligible for leave under the Family and Medical Leave Act (FMLA).

There is nothing new in the guidance document, but it does serve as a useful reminder to employers who allow employees to work from home, but when it come to the details of legal compliance have found themselves caught up in a state of “out of sight, out of mind.” It also can help prepare for any future enforcement efforts that may come down the road from Washington.

The FAB reminds employers that federal wage law defines “hours worked” as generally including all time spent by an employee between their first principal activity of the day and their last principal activity of the day. Of course, exceptions are made for meal and rest breaks, point out attorneys Robert Pritchard and Dimitrios Markos of the Littler Mendelson law firm.

The FLSA states that bona fide meal breaks of 30 minutes or more are not considered working time. Similarly, breaks longer than 20 minutes that permit an employee to use the time for their own purposes and during which they are completely relieved of their duties are not hours worked.

There are exceptions to be considered. In the bulletin, the DOL clarifies that some kinds of breaks are not compensable regardless of the location from which the employees perform their work. For example, if a remote employee takes a 30-minute break to cook dinner or fold laundry, that break is not compensable.

“While an employer may speculate that its teleworking employees are more likely to take a greater number of short breaks throughout the day to attend to personal matters than do their in-office colleagues, the FAB emphasizes that such short breaks still constitute hours worked,” Pritchard and Markos explain.

The bulletin also stresses that off-duty periods of longer than 20 minutes may be excluded from hours worked under the FLSA if the employee is completely relieved from duty and able to use the time effectively for their own purposes. To be considered completely relieved from duty, the employee must be told that they may leave the job. Also, they need to be informed that they: will not be required to restart work until a specified time more than 20 minutes later, or they may freely choose when they will resume working.

Keep in mind that federal law requires employers to provide new mothers with reasonable break time to express breast milk. The FLSA does not require employers to compensate nursing employees for such breaks. When an employer provides compensated breaks, however, an employee who uses that break time to pump must be compensated for the break.

“The key takeaway from the FAB is that the rules governing when breaks must be treated as hours worked do not change just because an employee is working from home,” the attorneys add.

NLRB: Be Careful Monitoring

“When managing a remote workforce, an employer should set clear expectations about when nonexempt employees are expected to work and how they should manage and track their breaks,” Pritchard and Markos recommend. “There is no one-size-fits-all approach to these complex issues.”

Managers of remote workers use various methods to engage, manage and monitor their performance and productivity. In doing so, employers have turned to technologies like tracking employee keystrokes, capturing screenshots and establishing on-camera requirements for employees during work hours, notes attorney Chelsea Hartnett of the Jackson Lewis law firm.

But when you monitor remote employees, keep in mind that the NLRB also is keeping a close eye on this sort of activity. The board’s general counsel, Jennifer Abruzzo, recently issued a memo seeking to broaden the reach of the National Labor Relations Act (NLRA) in order to limit the electronic surveillance of employees. This applies in particular to employees’ Section 7 rights under the National Labor Relations Act (NLRA).

Under Section 7, all employees enjoy legal protection of their right to discuss wages and working conditions. This doesn’t just apply to union situations, such as during an organizing campaign or as part of a discussion of the terms of an existing collective bargaining agreement; the NLRB has interpreted Section 7 to extend to protect such discussions among nonunion employees as well.

Abruzzo said an issue of particular concern to her office is the potential for omnipresent surveillance and other algorithmic-management tools to interfere with the exercise of Section 7 rights by significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer, if they so choose.

Under well-established law, an employer can be found to violate the law if: it implements new monitoring technologies in response to union and other protected activity; uses existing technologies to discover such protected activity, including by reviewing security-camera footage or employees’ social-media accounts; or creates the impression that it is doing such things, Hartnett explains

In the memo, Abruzzo asks the board to adopt a broader legal framework for determining the lawfulness of monitoring employees through electronic means, citing concerns it could interfere with organizing efforts. She also urged the board to find that employers presumptively violate the law if their surveillance technology and management practices, as a whole, tend to interfere with or prevent employees from engaging in protected concerted activity.

The memo further suggests that if an employer establishes “narrowly tailored” practices to address “legitimate business needs,” the NLRB would choose to weigh the employer’s interests against its employees’ interests.

“Even in cases where the employer’s interests are found to outweigh employees’ interests, employers would be required to disclose how employees are being monitored, absent special circumstances,” Hartnett points out. “Notably, the scrutiny called for in the memo applies to all employers subject to the act, not just employers with union-represented workforces.”

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