New Labor Department Guidance Could Help New Jersey Remote Workers

The Fair Labor Standards Act (FLSA) establishes a minimum wage for the entire country, requires employers to pay overtime when employees work more than forty hours during a week, and provides other protections for workers’ rights. A significant increase in the number of people working remotely over the past few years has raised questions about what constitutes “work time” away from the workplace. Non-exempt employees are entitled to pay for short break periods under the FLSA and New Jersey employment laws. Court decisions and administrative cases addressing this issue, however, have mostly involved time that non-exempt employees have spent in the workplace. The U.S. Department of Labor’s Wage and Hour Division (WHD) issued a Field Assistance Bulletin (FAB) in February 2023 that discusses break time for remote workers under the FLSA. Its conclusions are favorable towards the employees. While the FAB does not have the force of law, courts may be able to rely on it should this issue reach them.

FLSA regulations generally require employers to pay employees for job duties that they have performed, even if the employer did not specifically request it. For example, an employer must pay an employee who continues to work past the end of their shift in order to finish an assignment. This also applies when the employee performs the work off-site, including at the employee’s home.

An employee’s compensable time is not necessarily limited to the time they are actively engaged in their job duties. As a general rule, employees are entitled under the FLSA to get paid for rest breaks, but not meal breaks. Regulations define a rest break as a break lasting no more than twenty minutes that serves to “promote the efficiency of the employee.” “Bona fide meal periods,” as defined by the regulations, typically last at least thirty minutes. They are not considered compensable work time as long as the employee is relieved of all work responsibilities. The question for the WHD involves how these rules apply to remote workers.

FAB 2023-1, issued on February 9, 2023, addresses several questions related to remote work. With regard to rest and meal breaks, the WHD concludes that the FLSA’s provisions “apply equally to employees who telework as to employees working at an office” or another work site. Non-exempt remote workers are entitled to pay for rest breaks of no more than twenty minutes during the workday. Whether they are working on-site, at home, or anywhere else in the world, the WHD notes, workers will need to “take short breaks to go to the bathroom, get a cup of coffee, [or] stretch their legs.” Meal breaks of thirty minutes or longer, however, are not compensable for non-exempt remote workers, subject to the same requirements as on-site work.

The WHD issued a FAB in 2020 that addresses how employers may track remote workers’ hours. They must provide a “reasonable reporting procedure” that allows employees to report all scheduled and unscheduled work time. As long as employees follow that procedure, the employer must pay them for their time.

If your employer has violated state or federal wage and hour laws or committed other unlawful workplace practices in New Jersey or New York, you need an experienced advocate who can help you assert your legal rights. The employment attorneys at the Resnick Law Group are available to discuss your case and advise you about your options. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation.

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