By: Noah Finkel and Kyle Petersen

Seyfarth Synopsis:  The DOL has issued guidance to its staff – that might be relied upon by courts – that any break less than 20 minutes while working from home is compensable time, regardless of the reason for the break.

Especially because this post is being released on a Friday, chances are that you are reading it while working from home.  Before doing so, you might have fired up your home computer in the wee hours of the morning, and then grabbed your coffee from the kitchen.  You logged in, checked for urgent emails, and then took a few minutes for breakfast.  You got in some work, and then ensured your child was up and getting ready for school.  You went back to work again, but then had to take the dog out for a walk around the block.  After that, you resumed working, then took a full 30-minute lunch break, worked again for a few hours, and then met your child at the school bus stop.  You got back to work, only to be interrupted a few times by that same child asking for help with some homework assignments.  Upon resuming work for an hour or so, you remembered to move your laundry from the washer to the dryer, and then you finished your day’s work.

As a reader of this blog, you probably are exempt from the FLSA’s overtime requirement and you do not track your time worked.  But what about this work pattern for your non-exempt teleworking colleagues?  To what extent does an employer have to pay that non-exempt employee for all those short breaks that are endemic to working from home and that, when accumulated over the course of a week, add up to a considerable amount of time and thus pay?  And bear in mind that employees who work on an employer’s worksite typically work just as many hours as the teleworkers and do not enjoy the flexibility to take short breaks to the same extent.

Yesterday the DOL’s Wage-Hour Division provided its view on this question in the form of a Field Assistance Bulletin (“FAB”) to its staff that also is made available to the public. 

Unfortunately, the guidance – which does not have the force of law but may be relied upon by courts that find it persuasive does not help employers.  Rather, it sets forth the view that any break that is 20 minutes or less must be treated as compensable time, no matter its location or its true purpose.

The DOL’s reasoning largely stems from its own interpretive regulations – which themselves do not have the force of law, but are used by courts to the extent they find them persuasive – on determining compensable hours.  Under those interpretations, all time in an employee’s workday, from when they commence their first principal activity until they cease their last principal activity, is presumptively compensable, an interpretation that some have dubbed the “continuous workday rule.”  The common exception to the continuous workday rule is the bona fide meal period, which generally is 30 minutes or more and can be considered unpaid time.  In contrast, the DOL’s interpretations provide that rest periods of 20 minutes or less are counted as hours worked because “they are common in industry” and “promote the efficiency of the employee.”

Applying those principles to teleworkers, the DOL’s FAB states that “Employees commonly take short breaks during the workday.  Breaks of twenty minutes or less must be counted as hours worked” (emphasis added).  “Whether teleworking at home or working at the employer’s facility, employees often take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities.  By their very nature, such short breaks primarily benefit the employer by reducing fatigue and helping employees maintain focus and be more productive.”  Query how short breaks for childcare, pet care, or home care duties accomplish those goals.  The DOL’s FAB nevertheless concludes that “When employees take short breaks of 20 minutes or less, the employer must treat such breaks as compensable hours worked regardless of whether the employee works from home, the employer’s worksite, or some other location that is not controlled by the employer.” 

The DOL’s view does not go so far as to say that any break that isn’t a meal break is compensable.  Unsurprisingly, the DOL does admit that long breaks can be unpaid.  As examples, the DOL’s FAB states that a one-hour break to get children ready for school and a three-hour break to make dinner and do laundry are non-compensable.  But it is with the shorter and frankly, more common, breaks on which the DOL’s view provides a disincentive for employers to allow non-exempt employees to work remotely. 

The extent to which the DOL’s view becomes law in the age of teleworking remains to be seen. Hopefully, courts instead will determine the compensability of teleworking breaks by focusing more on the nature of the breaks than merely mechanically measuring their length.