What remote workers need to know about FLSA/FMLA coverage in the USA

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The Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA) are both established by the U.S. Department of Labor to offer guidance on employee rights concerning wages and employment. The FLSA sets forth regulations regarding minimum wage and overtime pay while the FMLA provides eligible employees with job protection related to certain medical circumstances.

As businesses look to shift their operations, they may be considering remote working arrangements. In fact, Buffer’s “State of Remote Work” survey showed that 97.6% of remote workers intend to keep working from home for the rest of their careers. This raises questions about classified employees and federal requirements for pay and overtime regarding this type of work model. It is important for employers to understand these laws but, how will this apply to remote employees?

This article will provide a comprehensive overview of how these laws impact remote workers including eligible alternative work arrangements such as virtual employment and independent contractor services.

What are FLSA and FMLA?

The FLSA and the FMLA are laws that protect employees when it comes to wages, hours and other labor-related matters. They both also protect remote workers except the ones that qualify as exempt. The FLSA sets multiple standards that impact individuals employed in federal, state, and local governments as well as those in the private sector.

This includes: 

Minimum wage:

Workers are provided with a federal minimum wage outline by the FLSA. In states that the minimum wage isn’t imposed, employers are subject to the federal minimum wage law.

Overtime:

If covered non-exempt workers exceed 40 hours in a workweek, they are eligible for overtime pay. The overtime rates are specified by state, but FLSA determines that is no less than one and a half times their usual pay rate.

Recordkeeping:

It is mandatory for employers to keep fundamental records for all workers, even for remote employees, which must contain details about their payment, work hours and other related data.

Hours worked:

This encompasses the duration during which an employee is obligated to be present on the employer's premises, at a specified workplace, or on duty. Remote workers are also covered by the FLSA as they perform their work while on duty or at a designated workplace.

• Birth of a child and care within the first year of birth
• Adoption of a child and care within the first year of adoption
• Care for employees child, spouse or parent with serious medical condition
• Employee with a serious health condition, which renders him/her unable to perform the crucial duties of their job
• Qualifying exigency arising out of their spouse, child, or parent's status as a covered military member on covered active duty

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Remote workers: are they considered in these acts?

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On February 9th, the U.S. Department of Labor (DOL) released a field assistance bulletin (FAB) to provide clarity on how the Fair Labor Standards Act (FLSA) applies to nonexempt remote workers, and the eligibility criteria for hours-of-service under the Family and Medical Leave Act (FMLA) for telecommuters.

The whole idea behind the FAB wasn’t to change any FLSA regulations or the law itself, but to remind employers on the reasoning and reinforce that it covers remote workers. As per the FAB, covered employers must compensate nonexempt employees for all the hours worked, whether they were conducted at their residence or any other location besides the employer's premises, as mandated by the FLSA.

“The regulations clarify that the term ‘hours worked’ does not exclusively refer to the duration during which an employee is actively engaged in productive work, but it can also include instances such as waiting or taking breaks” the FAB stated.

The above statement is deemed "concerningly vague" since it lacks clarification regarding what constitutes as compensable waiting time in situations where a nonexempt employee is unoccupied, said Jeffrey Ruzal, an attorney with Epstein Becker Green in NYC.

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

According to the FAB, breaks up to 20 minutes or less have to be considered as ‘hours worked’. Implicating that this idle time is part of the job, Ruzal explains that this may result in employees taking advantage of all idle time. He elaborated that this scenario could potentially lead to employees taking advantage of the lack of specificity and assuming that any idle time automatically qualifies as compensable waiting time.

How Airswift can help you

Airswift offers comprehensive assistance to businesses planning to expand their operations in the United States. Our services include helping clients navigate local requirements, such as legal counsel, labour laws, taxation compliance, work environment, permits, and hiring. 

Complying with labour laws is essential for any business that wants to operate legally and ethically in a country. These laws are set to protect employees' rights, ensure fair working conditions, and promote equality in the workplace. Failing to comply with labour laws can result in legal consequences such as fines or imprisonment, as well as damaging your company's reputation. Moreover, adhering to these regulations can also help build a more productive and happy workforce, which can ultimately boost your business success.

With our expertise, clients can effectively manage their risks, enabling them to focus on growing and expanding their businesses. We cover administrative responsibilities and take of the bureaucracy burden of your HR department. Our solutions are budget-friendly, and we prioritise quick results. If your organisation requires assistance, you can rely on our Employer of Record services.