Many employees are working remotely due to the COVID-19 pandemic and government orders restricting travel and normal workplace operations. Because remote employees aren't clocking in and out at the employer's physical premises, it's increasingly important for employers to ensure that their timekeeping and pay practices comply with federal, state, and local requirements.
The U.S. Department of Labor (DOL) has recently published guidance (Field Assistance Bulletin 2020-5) that addresses federal rules for paying remote workers. While the guidance doesn't carry the same weight as a regulation or law, it demonstrates how the DOL intends to enforce federal wage and hour requirements. Below are four key takeaways from the guidance.
The federal Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees for all hours worked. As such, employers have an obligation to track the number of hours of work performed by these employees. When non-exempt employees work from home it can be more complicated to ensure that they are properly tracking all time spent working.
In the DOL's recent guidance, the agency reiterated that employers must pay for all hours worked, including hours not requested but "suffered or permitted" to be worked, including work performed at home. If you know or have reason to believe that work is being performed, the time must be counted as hours worked, according to the DOL. The FLSA places a significant burden on employers that are deemed to have "actual or constructive knowledge of additional unscheduled hours worked by their employees." See example in #2 below.
According to the DOL, merely having a rule prohibiting unscheduled or unauthorized work isn't enough. Employers should also establish a reasonable process for an employee to report unscheduled work time. However, you can't discourage or impede accurate reporting under this process and must train employees on how to properly report such time.