Remote Work Didn't Change What Counts as Hours Worked

A nonexempt employee working from home takes a phone call during what was supposed to be a lunch break. Does that half hour count as hours worked? The answer does not change because the desk is in a spare bedroom instead of an office — and a federal bulletin exists mainly to remind employers of that, because a surprising number of them had started acting as though it did.

The U.S. Department of Labor issued Field Assistance Bulletin 2023-1 to agency staff who enforce wage and hour law, released on February 9, 2023. The bulletin does not create new rules. It restates existing ones and applies them explicitly to telework, because remote and hybrid arrangements had raised enough questions that the agency decided the old guidance needed to be said out loud again, in a setting nobody was thinking about when the underlying regulations were written.

The break rules did not move

The core test is unchanged: regardless of where the work happens, if the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. A short break stays a short break wherever it happens. Short breaks, typically 20 minutes or less, generally are counted as compensable hours worked. That is the same standard whether the employee is standing at a register or sitting at an office desk. A longer break, one where the employee is genuinely off duty and free to use the time for their own purposes, is not compensable — again, regardless of location.

The complication is not the rule itself but proving it. In an office, a manager can see who is at their desk. At home, the employer has to rely on the employee's own reporting, which is exactly why the bulletin also reminds employers that the obligation to maintain an accurate record of hours worked applies even when its employees are working remotely. A business with no system for capturing unscheduled work — the quick email answered at nine at night, the call taken during a break — is still on the hook for paying it, whether or not anyone wrote it down.

The same bulletin folds in a related duty for nursing employees, extending an existing break-time and privacy obligation to anyone working off-site. A teleworking employee expressing milk during the day is entitled to the same freedom from a computer or security camera that an employee visiting a client's office would expect, and the employer does not have to pay for that stretch of time unless the employee is also working through it, answering messages or staying on a call, in which case the ordinary hours-worked rule applies again. The point is not lactation specifically; it is that the DOL keeps reaching the same conclusion by the same route — take the office-based rule, ask what the off-site equivalent looks like, and apply it without carving out an exception just because nobody can see the employee's kitchen.

FMLA eligibility has its own remote wrinkle

The same bulletin also addresses a separate question that trips up companies with distributed teams: which office counts as a remote employee's worksite for FMLA eligibility. The employee's home is not the worksite. Eligibility instead depends on the office the employee reports to or receives assignments from, and that office must clear its own headcount test: a remote employee is covered only if that site has 50 or more employees working there or within 75 miles. A company with remote staff assigned on paper to a small regional office rather than headquarters may find that office does not clear the bar, leaving those employees ineligible no matter how large the company is overall.

What changes in practice

Nothing in the bulletin requires new software or a new policy from scratch. What it requires is that an employer's existing timekeeping and leave-eligibility habits actually reach the remote and hybrid parts of the workforce instead of stopping at the office door. A reasonable reporting procedure, consistently used and consistently paid, satisfies the recordkeeping duty even for hours nobody scheduled in advance. The bigger risk is not the rule changing under an employer's feet — it has not — but assuming that a rule built for a building somehow does not apply once the building is optional. Employers that already built compliant timekeeping for a single office are closer to compliant than they might assume; the usual gap is not the policy on paper but whether anyone actually enforces it once the employee is out of sight.