Tracking Teleworking Employees’ Hour of Work
On August 24, 2020, the U.S. Department of Labor (DOL) issued guidance reminding employers of their obligations under the Fair Labor Standards Act (FLSA) to track the number of hours worked by their employees who are working remotely. DOL was prompted to issue this guidance due to the COVID-19 pandemic, but stresses that it also applies to other telework or remote work arrangements.
DOL reminds employers that they are required to pay their employees for all hours “suffered or permitted” to work, regardless of whether the employer asked the employee to work certain hours and regardless of whether the employee is working on the employer’s premises or at a remote location, including the employee’s home. DOL advises employers to exercise due diligence to account for the hours worked by their employees to ensure that employees are properly paid for all hours worked, including hours not specifically requested by the employer. Employers may exercise due diligence by providing employees with a procedure for reporting hours worked, including hours not requested by the employer. Employers that prevent or discourage employees from accurately reporting their time are not practicing “due diligence.” Please note that an employee may not waive their right to compensation owed to them under the FLSA.
This does not mean however, that employers must allow employees to perform work that the employer does not wish to be performed. In fact, the FLSA requires employers to exercise control to ensure that work is not performed if the employer does not want it to be performed. If an employee performs work that the employer did not wish to be performed, but “suffered or permitted” the employee to perform, the time spent performing such work is compensable time. In other words, you must pay the employee for the unauthorized hours, but you may also discipline the employee, up to and including termination. Employers should take steps to ensure that employees are not performing unwanted work while working remotely and that they are reporting the actual hours worked accurately, including any hours worked outside of their normal scheduled hours if an employee works additional hours without approval or knowledge. Please contact us with specific questions about unauthorized work and how to combat this problem.
This update is provided for informational purposes only. It is not intended as legal advice, nor does it create an attorney/client relationship between The Moore Law Group LLC and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of The Moore Law Group LLC.
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