To guide an increasing number of employers transitioning to remote or telework due to the COVID-19 pandemic, the U.S Department of Labor’s Wage and Hour Division issued Field Assistance Bulletin No. 2020-5 on Aug. 24, 2020. The bulletin clarifies an employer’s obligation under the Fair Labor Standards Act (FLSA) to track all hours of work performed by hourly, nonexempt employees when they are teleworking.
According to a Department of Labor (DOL) news release, the guidance reaffirms that an employer must pay employees for all hours worked, including work not requested. So long as the employer knows or has reason to believe that an employee is performing the work, that work time must be compensated. However, an employer’s awareness of hours worked can be reduced when employees are performing work at home, away from the workplace.
Employer Obligations for Reasonable Diligence
The DOL’s general rule is that an employer may have actual or constructive knowledge of hours worked to pay employees. An employer is deemed by the DOL to have actual knowledge of work performed by remote workers based upon its regularly scheduled hours and hours reported by employees. According to the FLSA’s standard, constructive knowledge is whether the employer has cause to believe the work is being performed through “reasonable diligence.” The bulletin clarifies what this means during the current pandemic and the associated rise in work from home.
What This Means for Employers
The key takeaway from the guidance is that employers do not need to sift through nonpayroll records to investigate whether employees are working the hours they reported. Instead, employers can opt to rely on accepted time-keeping procedures. Employers can use reasonable diligence in tracking off schedule hours by establishing and communicating a reporting procedure for nonscheduled time. If an employee fails to report unscheduled hours worked through such a procedure, the employer is not, the DOL explained, “required to undergo impractical efforts to investigate further to uncover unreported hours of work” and is not in violation of the FLSA.
To ensure all remote time worked is compensated, employers should:
- Communicate expected work schedules to all nonexempt employees.
- Make clear that any overtime requires prior approval and exercise control to ensure only approved work is being performed.
- Require all off-schedule time, whether approved or not, to be reported.
- Give employees a procedure for reporting unscheduled time worked.
- Do not prevent employees from reporting unscheduled work time.
For more information regarding COVID-19 and the laws enforced by the Wage and Hour Division, visit www.dol.gov/agencies/whd.
U.S Department of Labor’s Wage and Hour Division Field Assistance Bulletin No. 2020-5
U.S. Department of Labor Issues Guidance to Clarify Employers’ Obligations to Track Teleworkers’ Compensable Hours