Jeffrey (Jeff) H. Ruzal, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in SHRM, in “DOL Explains When FLSA, FMLA Cover Remote Employees,” by Allen Smith.

Following is an excerpt:

The U.S. Department of Labor (DOL) issued a field assistance bulletin (FAB) on Feb. 9 to clarify the application of the Fair Labor Standards Act (FLSA) to nonexempt remote workers, as well as the Family and Medical Leave Act's (FMLA's) hours-of-service eligibility requirement for teleworkers.

The DOL also explained in an opinion letter the same day that eligible employees with serious health conditions who require reduced work schedules may indefinitely use available FMLA leave. …

Compensable Time Under the FLSA …

The FLSA requires covered employers to pay nonexempt employees for all hours worked, including work performed in their home or otherwise away from the employer's premises, according to the FAB.

"[T]he regulations explain that 'hours worked' is not limited solely to time spent on active productive labor but may, for instance, include time spent waiting or on break," the FAB said.

This statement is "concerningly vague" because it doesn't expand on what qualifies as compensable waiting time when a nonexempt employee is idle, said Jeffrey Ruzal, an attorney with Epstein Becker Green in New York City.

"While there are regulations that explore the contours of compensable and noncompensable waiting time, this FAB does nothing to contextualize compensable waiting time where a nonexempt employee is working remotely," Ruzal said.

He explained that this could result in employees unilaterally taking advantage of any implication that all idle time is tantamount to compensable waiting time.

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