Good News for Businesses on Tracking Telework Time
Millions of Americans continue to telework (or otherwise work remotely away from the worksite) during the COVID-19 pandemic. And, telework is likely here to stay for many businesses and their workers post-pandemic. The nature of telework where workers can work anytime (outside traditional or scheduled hours of work) and without direct oversight, can result in a heightened risk of wage and hour litigation for employers.
In response, the Department of Labor (DOL) recently issued guidance on how employers should track compensable work—including unscheduled work— performed by teleworking employees under the FLSA. A policy prohibiting unscheduled work does not in itself relieve employers of their obligations under the Fair Labor Standards Act (FLSA). An employer is required to pay for all hours that it knows or has reason to believe were worked.
DOL makes it clear employers can minimize exposure to FLSA liability by providing a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work. Employers should not prevent or discourage workers from accurately reporting hours worked.
If an employee fails to report unscheduled hours worked through the reporting procedure, “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours,” says the DOL.
While its focus is on telework, the DOL guidance applies to all unscheduled or off-the-clock work performed by nonexempt employees. Having an effective timekeeping policy and reporting procedure will be critical in showing that the employer exercised reasonable diligence to track all hours worked by its workers and any hours of work not reported under such procedure are not compensable.
The guidance, in the form of a field assistance bulletin, can be found at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_5.pdf.
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*This publication is for general information only and intended for clients and friends of Donnelly + Gross. It should not be relied upon as legal advice as the law related to each situation varies. Moreover, workplace law related to Covid19 is dynamic and changing daily. The sharing of this information does not establish a client relationship.