Recent actions by the federal government serve as important reminders to businesses—large and small, alike—of their various responsibilities under federal employment laws.
On February 9, 2023, the U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) addressing questions related to compliance with the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) when a business employs remote workers.
The DOL also recently concluded an investigation of Stellantis that found the automaker was violating rights of nursing mothers at its Sterling Heights plant by not providing them appropriate space and time to express milk, as required by the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).
The FLSA, FMLA and Remote Work
The FLSA and FMLA are two important federal laws that protect workers’ rights in the United States. However, with the rise of remote work or telework, it is crucial to understand how these laws apply to workers who do not work from a traditional office space.
The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards for employees in both the public and private sectors. The FLSA generally applies to employers who have at least two employees and gross $500,000 or more a year.
The FLSA requires employers to pay non-exempt employees at least the federal minimum wage for all hours worked and overtime pay for hours worked beyond 40 hours per week. Additionally, the FLSA requires employers to maintain accurate records of hours worked, wages paid, and other employment-related information.
The FMLA, on the other hand, applies to a private sector employer if it employs 50 or more employees in 20 or more workweeks in the current or previous calendar year. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave for specific family and medical reasons, such as the birth or adoption of a child, to care for a family member with a serious health condition, or to recover from their own serious health condition.
The DOL Bulletin makes clear that FLSA and FMLA apply equally to onsite and remote workers. The FLSA explains that remote employees are entitled to compensation for all hours worked, including short rest breaks and breaks to express breast milk. According to the Bulletin, these protections apply to both employees working at traditional worksite locations, such as offices, factories, construction sites, and retail outlets, as well those working remotely.
Furthermore, pursuant to the Bulletin, under the FMLA, all hours worked by teleworking employees count towards determining their eligibility for leave. The determination of an employee’s worksite for FMLA purposes is fact-specific and based on several factors, including where the employee reports to work or where the employee’s assignments are made. However, the Bulletin makes clear that when an employee teleworks from home consistently or in combination with working at another or various worksites, all of those hours count towards their FMLA eligibility.
It’s important to note that while the Bulletin doesn’t have the force of law, it’s an important indicator of DOL policy regarding FLSA and FMLA enforcement. Therefore, employers—especially those with a remote or hybrid workforce—should review whether their policies are in line with their responsibilities as outlined in the Bulletin.
The PUMP Act
The PUMP Act is a federal law that was originally signed into law 2010, and an updated and expanded version was passed on December 29, 2022. It requires employers to provide reasonable break time and private space for employees to express breast milk.
An employer’s responsibilities under the PUMP Act include:
- Provide Reasonable Break Time: Employers must provide reasonable break time for employees to express breast milk for up to one year after the child’s birth. These breaks should be provided each time the employee needs to express milk, and they should be paid if the employee is a non-exempt worker.
- Provide a Private Space: Employers must provide a private space, other than a bathroom, for employees to express breast milk. This space must be shielded from view and free from intrusion by coworkers and the public.
- Provide Notice to Employees: Employers must provide employees with notice of their rights under the PUMP Act. This notice should be provided to new employees at the time of hiring and to existing employees as soon as practical after the law goes into effect.
- Maintain Records: Employers must keep records of the break time provided to nursing mothers for up to three years.
- Prohibit Discrimination: Employers cannot discriminate against employees who choose to express breast milk at work.
- Provide Accommodations: Employers must make reasonable efforts to provide nursing mothers with the accommodations they need to express breast milk, such as access to a refrigerator to store expressed milk.
As set forth above, the DOL recently concluded an investigation of Stellantis, finding that the company failed to meet its obligations under the PUMP Act. While Stellantis is a large employer, the PUMP Act applies equally to small employers—a fact that, in my experience, many small business owners aren’t aware of. In particular, the PUMP Act applies to all employers that are subject to the FLSA break time requirement, unless they have fewer than 50 employees and can demonstrate that compliance with the provision would impose an undue hardship. According to the DOL, an “undue hardship” is “determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, or structure of the employer’s business.”
Employers big and small, regardless of whether they have onsite, remote or hybrid workforces, have important legal obligations to uphold to employees under federal and state laws, including the FLSA, FMLA and PUMP Act. Failure to comply can result in significant fines and penalties, as well as costly litigation. For assistance with these and other employment law related issues, please contact Zana Tomich.