Narrator: Welcome to Small Business Spoonfuls Podcast, a late back discussion of the serious HR topics and trends of today, sponsored by helpdesk for hr.com. 

Lisa: All right, so welcome everybody to another edition of Small Business Spoonfuls. I'm Lisa Smith and I'm joined here with Mason Merrill. And we are going to be talking about some Department of Labor stuff today. Hey Mason, how are you doing 

Mason: I'm doing good. Yeah, no, it's, great to be back. Glad to, be recording another episode here. And yeah, we're, we mentioned on our last episode we were kind of doing the Ask HR support series, so now we're gonna talk a little bit about a, rule from the, department of Labor. That's kind of changed because, you know, I call it BC before covid, AC after Covid, you know, so these are kind of some things that have come to light that, how the remote workplace is treated, after Covid ac . 

Lisa: Oh, yeah, no, you're exactly right. You know, before covid BC , you know, not a lot of people worked from home. I mean, some did, you know, we've always had some at-home workers, but, you know, of course we saw with Covid, like everybody went home for, seems like a year or two , you know Yeah, right. And, and so some of the ways that we have viewed the way workers are treated in the workplace on site as opposed to working from home, we've not taken the at-home people as seriously. And so Department of Labor just wanted to issue, some guidance to us about, you know, the reminders that when people are working at home, they're still at work, 

Mason: Right 

Lisa: Yeah. So this, this was, an opinion letter that was issued a few weeks back, so I guess this probably would've been issued. I don't have the exact date, late January, early February. And it basically reminded us that we all understand the break requirements, right So we know that if someone is going to have an unpaid break, then that needs to be at least 30 minutes long, and it needs to be where they're completely relieved of duty. Okay So for years we've understood that and they wanted to remind us that the same goes for people working at home. That if you are required under your state law to give somebody a 30 minute meal break, for instance, that is unpaid, then you've still gotta give them that break at home. It's, it's not like you can be like, oh, we can wa the meal period. They can just work through lunch because they're at home anyway. It's not serious. Yeah. You know, we, we aren't not gonna do that. We're gonna really take that seriously. 

Mason: Right. And I think the, the, you know, some of the purpose of them doing this stuff is, like you mentioned, w work from home has become a more popular thing. So we're trying to turn the views of employers to, to real, to, treat the home workplace as they would the physical workplace. 

Lisa: Yeah. And you know, of course, by doing this, the d o l is not saying all employers are being terrible and not giving the worker's breaks. They're not saying that, they're just saying that they've come across enough of the, of the issues that it's time to say something 

Mason: And it's time to shift the focus a little bit. You know, like where's our focus versus, you know, a broader spectrum or we just focused on the in-person workplace, you know, so. 

Lisa: Yeah, exactly. And so I, I feel like that was a really good thing. Now we also know that the other issue here is that generally speaking, if an employee is not given a full 30 minutes and, not fully relieved of duty, so like maybe a 20 minute break, very 15 minute break is very common, you know, the old coffee break, you know, kind of deal. Then we've, we've known for years that that is paid time. Yeah. But d o l has been stumbling across some workers who have complained that their employers are saying, well, you are at home all the time anyway, so we are not going to pay you for, for your coffee breaks, so to speak. So, you know, you get two 15 minute breaks a day, so we're gonna automatically deduct those 15 minute breaks because you're at home and, you know, we, we can't, we, we could, we could sort of say, you're fully relieved of duty because you're not even here. Yeah. But that is not the proper way to view the home work workplace . Right. Because it's still, for the purposes of this law anyway, it is still a workplace. 

Mason: Yeah. And it, no matter what the person's doing for the, the break or, you know, if, if you have in your policy that certain breaks are covered and certain breaks are unpaid, or certain breaks are paid and unpaid, you need to apply that to the, to, to the home or just make a general, you know, like breaks are paid for, you know, kind of thing. So like, as long as it's, you're, you're getting done and stuff like that. So just a kind of a personal experience, I have a friend who, he works from home all the time and his lunch, during his lunch break, he orders DoorDash and then he likes to stream on Twitch and play games. So for the 30 minute break, he has his lunch streams and we play games sometimes and have a great time. And those breaks are unpaid for his company. So he clocks out and then clocks back in after it's done. And so, and there's no difference in that in being in the physical workplace and going out to lunch for an unpaid lunch with your friends and all that kind of stuff and then coming back. So, just kind of an example of just, you know, some in, in, in the physical workplace that's no different than what he does on his, you know, in a remote workplace. I don't know if I'm phrasing that right, Lisa. 

Lisa: No, you are. And that's a great example. And that is, is a great example of fully relieved of duty. I'm in, I'm in my home, I'm doing my thing on my own time. Now, if he did get like a 15 or 20 minute break at other times during the day, then if his employer required that he deduct that from his work time, his paid time, that would be illegal. Right. According to Department of Labor. And we couldn't use the, the defense of, oh, well, you know, he's just at home so we, we shouldn't have to pay him for those breaks cuz he's at home. You know Right. That, that doesn't really fly. A workplace is a workplace according to the Fair Labor Standards Act. And that gets confusing because like for instance, the Family and Medical Leave Act says that the home workplace is not considered a work site and your official workplace is the one that you report into and get your assignments from. And so we have two different laws under the same umbrella of the Department of Labor defining the work site in different ways. So this is why it's really important to know each law and not assume that because one law says one thing, another law is going to follow that same definition. Right. 

Mason: So, yeah. And in the, you know, in what we're talking about here in the opinion letter, from, you know, from the, the, the d o l ultimately short breaks are compensable for teleworkers. And that's the, that's really the message of what is trying to be conveyed here. 

Lisa: Yeah. And so in this, opinion letter, and then there was also a field assistance bulletin that was issued at the same time. the, the, the fab, as they call it, Phyllis Field Assistance Bulletin, the fab I like that says, 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. So that's something employers really have to take seriously, is that, you know, anything that benefits the employer, is generally compensable to the employee. And so that's another way to look at these short breaks by allowing them, you know, freedom to stand up, walk around the house, go outside for a minute, come back, you know, for 15 or 20 minutes. And sometimes the breaks aren't even that long, but for that amount of time they're actually pushing reset Yeah. In many ways. And able, and they're able to come back and be more productive than if they had just been like chained to their desk the whole day. 

Mason: Yeah, no, I, I feel that in my bones. I can say, you know, cuz I, during Covid I came home, you know, we, I, we had our office and we decided to go fully remote and it was a big adjustment for me at first cuz I was like, I was so structured and I go somewhere and I do the job and da da da da and it, it, it, it's something that me finding, I have to get up and take breaks and walk around and to stay focused and not just like, drift off at the desk sometimes really, really makes me more , you know, more I, I'm more productive throughout the day. So just a little personal experience there. 

Lisa: No, that's great. And then the other part of this, bulletin that was issued was making sure that employers always keep in mind that mothers who are nursing should still be given breaks to, you know, pump milk and, and the same rules apply on the workplace as they would if they're working from home. So we, we wanna not make any difference there for moms. Yeah. And, you know. Yeah. And they also note here that this also applies to cases in which an employee works from another site, such as a client's site. Mm-hmm. So the employer in this scenario must provide an appropriate place for the employee to pump that is shielded from view and free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform. So again, you know, we saw this big move toward employers who were like requiring that a, a person's camera on all day. Just like, if I could see sitting at, yeah. Like if I could see you sitting at your cubicle, then I should be able to see you through your, you know, webcam. But we have to keep in mind that there are, there are privacy issues that are also in play. And so that applies in the workplace, in the home workplace as well. 

Mason: People have tried to require that in, in this new age of, you leave your camera on all the time, but the still the espe, especially for the nursing mothers, you know, the, these rules still apply if they need to pump. And I think we actually did an episode on that. I can't remember exactly the episode, but we did a lot of the episode on those guidelines and, without like setting up a proper place and things like that, when you're, when you're at home a lot, a lot of those guidelines we talked about still apply 

Lisa: Here. Yeah, absolutely. So flip back through our previous podcast, because you're right, I I believe we did do one a while back on that. So yeah. So we, we definitely just want to make sure that we're always keeping this in mind. you know, this is kind of just a short and sweet little reminder. A lot of folks might be like, oh yeah, we already knew that. Why did you waste the podcast on it You know, but, but really and truly a lot of employers don't know this and they don't realize that the workplace, transfers from onsite to home, there is very little difference. 

Mason: And you would be surprised. I mean, you would be surprised at the things that people don't even think about. Don't know, don't. And so we're, if if you're doing it right, we're not talking to you , you know, like we're just, you can just That's right. Shake your head and nod and give yourself a pat on the back. But there are a lot of people out there that just completely are like, oh, I never thought about it that way. And it's not obliviousness. It's just like, oh yeah, you gotta think about everything. So we're just trying to cover all the bases and especially when an opinion from the D o L comes out something like this, we wanna make sure we're covering 

Lisa: It. Yeah. And they don't write these opinions for their health, so that means they're running into this. And so when you see a, a fab and an opinion letter be published on the same topic, basically, you know, that they're, this is number one, it's getting reported, it's on their radar. Right. Which means you need to take it seriously cuz you don't wanna be on their radar personally as a company. Right. No, hrs job is to protect the company. So make sure that we all understand, you know, these laws, even if they seem like they matter very little in your workplace. 

Mason: Yeah. Yeah. And, for more reading and more information on this, we'll post a couple links link to the fab, if we can do that. Yeah. And, and then, yeah, just, you know, if you're interested in learning more then you know, you can, read up on it and go a little deeper on the dive on what all that entails. 

Lisa: Yep. Absolutely. Well, I think that's it for today, huh 

Mason: Yeah, I think so that was, good, quick episode and, go ahead and tee us up for our next one, Lisa. 

Lisa: Okay. Well, so this next one that we're going to do is going to be a lot of fun. So this is another one of our, it's not one of the Ask HR support questions, but it is another Department of Labor F L S A questions and I have given it a little catchy title, , and that's all I'm gonna say. Okay. So the title of next ti of next week's episode is Naughty Girls Need Minimum Wage and Overtime too. And that's it, that's all you're getting. 

Mason: Okay. I'm a little traumatized by that, but, okay, . Alright, I'll, I'll have to tune in next week to understand what's going on here. . 

Lisa: Yes, you'll definitely have to tune in Mason . 

Mason: Yeah. No. But, we thank everyone for listening once again. this podcast is always sponsored by Help Desk for hr. If you wanna learn more about our services, go to help desk for hr.com and follow us on Twitter, engage, let's engage the conversation. Let us know what you think on these different topics we're talking about. And, you can follow us on Twitter at help desk for hr. 

Lisa: Yeah, absolutely. So I guess until next time, always remember what we say. You can't be audit proof no matter how hard you try, but if you do follow the steps, the guidelines, the best practices, you have good policies and procedures, you can feel secure on the day that auditor litigator or investigator walks into your office. So that's why we say be Audit secure. 

Narrator: If you would like to learn more about our team and the services we provide, head over to help desk for hr.com. Our 8,000 plus members enjoy the essential training tools and support they need to keep up with ongoing legal changes as well as maintaining solid HR and employment law compliance. Also, don't forget to subscribe to this podcast on Apple Podcasts or Spotify. If you like what you hear, we'd love to hear from you either by leaving us a review or you can email us at support helpdesk for hr.com.