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Employers must diligently track employee hours during explosion of remote work

On August 24, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) published a news release announcing important guidelines clarifying the legal responsibilities of employers to track employees’ remote work hours. COVID-19 has forced more employees to work from home than ever before. Because of the increase in remote work, and because the last interpretive rules for remote work were from 1961, the agency felt it was an appropriate time to address this topic in its Field Assistance Bulletin (FAB) 2020-5.

FLSA rules require employers to pay their employees for all time worked, even if it means paying overtime. Employers bear the responsibility of tracking extra, nonscheduled time worked, which is likely more challenging during a telecommuting or remote work period of time.

Employers must exercise “reasonable diligence” in tracking remotely worked hours

The new FAB expands on the FLSA’s remote working rules and clarifies employers’ responsibilities. Employers must compensate employees for all work performed – even work “not requested but suffered or permitted,” including work performed remotely. Employers must try to control and prevent employees from performing work they do not want. So, if an employee performs work that was not requested, the employer must compensate the employee for those hours so long as the employer had constructive knowledge of the work.

The legal test for whether an employer had constructive knowledge of an employee’s work time is whether the employer had reason to believe so or could have found out with “reasonable diligence.” Reasonable diligence does not mean that the employer must make every possible effort to find out if an employee is working extra hours. For example, the employer is not required to comb through phone or computer records to see if it can determine if the employee was working off the clock. Rather, an employer’s efforts must be reasonably diligent such as by giving employees a practicable way to report their hours.

One of the overarching principles of the FLSA is that employers must exercise reasonable control over their employees and provide their employees with a proper reporting mechanism to ensure that employees report all their hours worked and are properly paid. The amount of remote work brought on by the pandemic presents new challenges for employers and employees alike. The concepts explained in this bulletin are helpful to navigate these times and are important to New York employers and employees alike.

 

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