Summarized from Department of Labor Field Assistance Bulletin 2023-1:
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 or job site. “Hours worked” is not limited solely to time spent on active productive labor but may, for instance, include time spent waiting or on break.
In general, an employee’s workday on any particular day is the period between the time when the employee commences their first “principal activity” and the time on that day at which they cease such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, or tour of duty.
When it comes to breaks taken during the workday, the FLSA regulations explain that short breaks of twenty minutes or less are generally counted as compensable hours worked. Longer breaks “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked.” These principles apply regardless of whether the work is performed at the employer’s worksite, at the employee’s home, or at some other location away from the employer’s worksite.
If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked regardless whether the employee works at the employer’s location or teleworks from another location. An employer may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by providing a reasonable reporting procedure for non-scheduled time and then paying employees for all reported hours of work, even hours not requested by the employer. See Field Assistance Bulletin No. 2020-5 for more information on tracking teleworking employees’ hours of work.
Short Breaks of 20 Minutes or Less
Employees commonly take short breaks during the workday. Breaks of twenty minutes or less must be counted as hours worked. 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 employee fatigue and helping employees maintain focus and be more productive at work.
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.
Meal Breaks and Off Duty Time
Unlike short rest breaks of 20 minutes or less, bona fide meal breaks (typically 30 minutes or more) in which an employee is completely relieved from duty for the purposes of eating regular meals are not worktime. Similarly, breaks that are longer than 20 minutes and permit the employee to use the time effectively for their own purposes and during which the employee is completely relieved from duty are not hours worked.
To be completely relieved from duty, the employees must be told in advance that they may leave the job and they will not have to commence work until a specified hour has arrived. An employee may also be completely relieved from duty when the employer allows the employee to freely choose the hour at which they resume working and the time is long enough for the employees to effectively use for their own purposes.
Example #1: Employee A works at a shared workspace not controlled by their employer and takes a break for lunch from 12:30 p.m. to 1:00 p.m. During this break, Employee A is interrupted by work phone calls, with each call lasting several minutes. Because the meal break period of 30 minutes is frequently interrupted by work phone calls, Employee A would not be considered relieved of all duties and the meal break period would have to be counted as hours worked.
Example #2: Employee B works from home and is allowed flexibility to set their own schedule. Employee B starts works at 7:00 a.m., takes a one-hour break from 8:00 a.m. to 9:00 a.m. to get their children ready for school, and resumes work at 9:00 a.m. The period between 8:00 a.m. and 9:00 a.m. is not work time under the FLSA because Employee B is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.
Example #3: Employee C teleworks from home and has an arrangement with their employer where Employee C works from 9:00 a.m. to 4:00 p.m., takes a three-hour break from 4:00 p.m. to 7:00 p.m., and returns to work at 7:00 p.m. and works until 8:00 p.m. Employee C is free to do whatever Employee C chooses during this three-hour break, including staying at home to make dinner and do laundry, for example. Under these circumstances, because Employee C is relieved from duty and is able to effectively use the period between 4:00 p.m. and 7:00 p.m. for their own purposes, that time is not work time under the FLSA.
In sum, bona fide meal breaks and periods where employees are completely relieved from duty and are able to effectively use the time for their own purposes are not hours worked under the FLSA. This is true regardless of the location from which employees perform their work.
As for lengthier breaks, Field Assistance Bulletin 2023-1 includes an example of a nonexempt employee who works from 9 a.m. to 4 p.m., completely stops working for three hours to cook dinner and do laundry and then resumes working from 7 p.m. to 8 p.m. That three-hour period wouldn’t be time worked. After all, longer breaks don’t need to be paid.