Whether employers like it or not, there is no question that the COVID-19 pandemic has altered the modern work environment for many businesses. As employers across the country continue to allow, and even encourage, their employees to work remotely, we continue to see the questions and challenges that accompany the work-from-home model. Fortunately, not all of those challenges need be navigated blindly. The U.S. Department of Labor (“DOL”) recently issued a Field Assistance Bulletin to help untangle some of the concerns regarding paying employees for all hours worked, even when employees are not in a traditional employment setting.
As you are already aware, the Fair Labor Standards Act (“FLSA”) requires employers to pay its employees for all hours worked, including work not requested but suffered or permitted. This includes work performed at home. In the context of remote work, the DOL makes clear that employers must pay its employees for all time worked whenever the employer knows or has reason to believe that work is being performed.
You may be asking, “How can I be on notice that my employees are working additional compensable time outside of their regularly scheduled hours when they are working from home?” According to the DOL, employers are held to a reasonable diligence standard, which asks what the employer should have known, not necessarily what it did know. As such, employers are obligated to exercise such reasonable diligence to track employees’ compensable time, even when those employees are working from home.
While it may seem difficult to meet this obligation to keep track of employees’ time when those employees are given the flexibility of remote work, the DOL suggests that an employer may satisfy its obligation by providing a reasonable process for an employee to report uncompensated time. By doing this, the employer has given the employee a consistent method of reporting hours worked, and the employer will generally not be expected to undertake further investigation to uncover additional unreported time. The DOL also establishes that, in most situations, an employer will not be expected to sort through non-payroll records, such as phone or computer records, to ensure completeness of an employee’s time.
Based on this guidance, it would be wise for employers who do not already have in place a procedure for employees to report unscheduled hours of work to do so promptly. Employers also should consult their legal team to establish a written policy outlining the process for employees to reference when needed. Due to the uncertainty of the COVID-19 pandemic, particularly as we enter colder months with more indoor activity, employers who may not currently have employees working remotely should nevertheless have a plan to meet its obligation to track compensable hours when needed. If anything, the DOL’s guidance serves as a reminder to employers that their obligations under the FLSA do not waver, even during unprecedented times.
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