U.S. Labor Department Issues Guidance to Remind Employers of Obligation to Track Hours Worked Remotely
By Johnathan Koonce
This week, the U.S. Department of Labor issued guidance regarding employers’ obligations under the Fair Labor Standards Act (“FLSA”) to track the number of hours of compensable work performed by employees, including work performed remotely or away from their employers’ worksite.FN1 The DOL’s Field Assistance Bulletin (“FAB”) applies to all telework arrangements, including those arising in response to COVID-19.
An employer is required to pay its employees for all hours worked, including overtime and work performed at home.FN2 Under the FLSA, employers are obligated to pay employees for work “suffered or permitted,” even if such work is not requested by the employer. Employers are charged with compensating employees for all hours the employer actually knows or has reason to believe is being performed. Thus, the FLSA requires employees to exercise reasonable diligence to acquire knowledge of all hours worked and to “exercise its control and see that the work is not performed if it does not want it to be performed.”FN3
Generally, employers have actual knowledge of employees regularly scheduled hours or hours worked through employee reports. Employers are obligated to compensate employees for hours it reasonable should have known about, which commonly includes overtime, unscheduled hours, and hours worked remotely.FN4 Guidance from the DOL’s Bulletin provides that one way for employers to satisfy their obligation to exercise reasonable diligence is to establish a process for employees to report uncompensated work time. If an employee fails to utilize the employer’s established reporting procedure—and the employer has not implicitly or explicitly discouraged its employees to accurately report such time—the employer is not obligated to investigate further;FN5 and employers are not required to compensate employees for unreported hours that the employer neither knew about nor had reason to believe was performed.FN6
Takeaway
Employers permitting their employees to work remotely should ensure their telework policies clearly establish a process for employees to report all hours worked, as well as clearly establish when such reporting process is to be used, and what work qualifies for compensation. For questions regarding telework policies, please contact an attorney at Campbell Litigation, P.C.
Footnotes:
FN1: See Wage and Hour Division, Field Assistance Bulletin No. 2020-5 (published August 24, 2020), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_5.pdf.
FN2: See 29 C.F.R. § 785.11-12.
FN3: See § 785.13.
FN4: See Field Assistance Bulletin No. 2020-5 at 3.
FN5: Id.
FN6: See 29 C.F.R. § 785.11-12.