Have a System to Track Remote Work and Pay for All Hours says U.S. DOL in New Field Assistance Bulletin on Telework

September 22, 2020

The U.S. Department of Labor recently issued new guidance regarding an employer’s obligation to track hours of employees who are teleworking. Briefly, the new guidance clarifies that an employer has an obligation to exercise reasonable diligence to track the actual hours worked of employees who are working remotely away from a physical worksite. While the guidance is timely because of the increase in remote work caused by COVID-19, employers must keep in mind that these rules apply equally whether an employee is working from home because of coronavirus for some other reasons.

As background, the Fair Labor Standards Act (“FLSA”) is a federal law and it requires employers to pay employees for all hours worked. This includes not only the hours that the employee is scheduled to work, but also hours that the employee is “suffered or permitted to work.” This language of the FLSA has been interpreted to mean that an employer MUST pay an employee his/her wage for all hours that the employee is allowed to work on behalf of the employer, and for hours that the employee works when specifically advised not to, including all hours worked remotely. Importantly, the right to be paid for all hours worked cannot be waived by an employee.

Now, obviously an employer can only pay for those hours which it knows that the employee is working. In the context of remote work, including teleworking, the employer has actual knowledge of the employees’ regularly scheduled hours, as well as the hours the employee reports or otherwise notifies the employers. But when an employee works remotely, it can be difficult to know the unscheduled or unreported hours an employee works.

The new DOL guidance makes clear that an employer’s lack of knowledge of actual teleworking hours will not necessarily excuse non-payment of wages. An employer must pay not only for hours that it actually knows have been worked, but also hours that it SHOULD HAVE KNOWN the employee worked in the exercise of reasonable diligence.

Generally, reasonable diligence does not require an employer to take affirmative steps investigate non-payroll records (e.g. electronic access logs) to figure out when an employee is working on employer-issued electronic devices. With that said, if a manager happens to notice from time stamps on emails that an employee is working hours that he/she is not reporting, the employer cannot turn a blind eye toward this issue. The employer is well-advised to take steps to make sure that the employee gets paid for those hours, and maybe also advise the employee of the importance of accurate time reporting.

The DOL’s new guidance also identifies some specific steps employers can take to show that they exercised the required reasonable diligence to ensure compliance with DOL rules for tracking actual hours worked remotely:

· Establish and utilize a reasonable reporting procedure system for employees to notify the employer of scheduled AND non-scheduled work time, including hours worked remotely;

· Avoid preventing or impliedly discouraging employees from accurately reporting the time he/she has worked, i.e. employees should clearly understand from their employer that they need to be reporting all time that they work;

· Always pay employees for all time worked, including overtime) regardless of whether it was scheduled or unscheduled;

· If an employee works hours they were prohibited from working, pay the employee for those hours worked, and counsel the employee not to do so in the future. If they continue, consider issuing a warning to the employee, but NEVER refuse to pay for any hours actually worked, even if the employee was specifically advised not to do so.

Employers who take these steps will put themselves on solid ground to say that they complied with their obligations to track all hours worked, including those performed remotely. The full DOL field bulletin assistance guidance on tracking teleworking hours can be found here.