EMPLOYMENT LAW NEWS
DOL Issues Guidance on Tracking Hours for Non-Exempt Employees
By Kris Janisch
Published Oct. 8, 2020
With more employees than ever working from home, the U.S. DOL provided guidance for tracking hours and complying with the FLSA.
As more companies turn to remote working conditions in the face of the COVID-19 pandemic, the U.S. Department of Labor (DOL) Wage and Hour Division issued a bulletin to remind employers of tracking hours for employees working from home.
The document outlines obligations for employers under the Fair Labor Standards Act (FLSA), specifically aimed at hourly employees working from home. While the guidance was issued in response to COVID-19, federal officials reminded employers that it applies to any telework situation.
Tracking Hours for Remote Employees
Officials reminded employers that all hours worked, even those “not requested but suffered or permitted,” must be paid.
So long as an employer knows or has reason to believe the employee is doing work, the time must be counted. But in a remote working environment, it’s more difficult for the employer to fully know whether the employee is working. Here, it’s up to the employer to have knowledge of unscheduled hours through “reasonable diligence.”
One way to avoid potential pitfalls? Create a strong reporting procedure for unscheduled time. In that instance, employers do not have to go to “impractical lengths” to investigate unreported hours.
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Still, employers are warned not to discourage accurately reporting time, and employees can’t waive their right to compensation under the FLSA.
Lastly, employers should ensure hourly workers are only doing the work they want to be completed. If an employee does work the employer did not want and had no reason to know about, the employer may not have to pay for those hours.
The bottom is that companies with hourly employees who are working from home should make every effort to outline the scope of the work and craft processes to clock overtime hours. Essentially, if an employer “could have known” about the hours, an employee would likely be entitled to pay for that time.
Working from Home Considerations
In 2019, the U.S. Bureau of Labor and Statistics estimated that nearly 25 percent of employed Americans did some work at home on an average day.
Of course, that figure has swelled since the arrival of COVID-19 and new workplace policies and procedures, which prompted the WHD to clarify the issue of tracking employee hours worked from home.
It should also be noted that if an employee fails to report unscheduled work hours, the employer would not be required to investigate unreported hours.
The bulletin from the DOL’s WHD also includes references to court cases affirming the guidance regarding working from home, reporting hours, procedures and how they comply with the FLSA.
This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.
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