DOL Provides Employer-Friendly Telework Guidance on Time Reporting.
The U.S. Department of Labor (DOL) has just issued guidance on employers’ obligations to track teleworking employees’ hours of work that may help employers avoid unintended overtime pay obligations.
Recognizing that the number of teleworking employees has surged with COVID-19 restrictions, and that tracking hours worked from home is more difficult, the DOL has provided updated guidelines here. First, the basics from the DOL guidance (which relies heavily on employer friendly court decisions), then some tips:
“An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home. See 29 C.F.R. §785.11-12. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked.” An employer can meet its duty of diligence to determine the hours worked by providing “a reasonable reporting procedure for non-schedule time and then compensating employees for all reported hours of work.”
And, importantly, “the [Fair Labor Standards Act] stops short of requiring the employer to pay for work it did not know about and had no reason to know about.” If an employee fails to report unscheduled hours worked through the employer’s procedure, “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.” Reasonable diligence “does not require the employer to undertake impractical efforts such as sorting through [non-payroll records] to determine whether its employees' worked hours beyond what they reported.”
Based on this guidance and the established law, we recommend the following steps to ensure proper payment of work from home:
- Establish a written work schedule and a policy to require employees to report daily or at least weekly all time worked at home or in any location, whether scheduled or unscheduled.
- Require the employees to certify each week that they have accurately reported all time worked and not worked off the clock at any time.
- Have managers review the time reported and instruct them that allowing or supporting work “off the clock” is grounds for discipline of the manager.
- Pay employees for all time worked and reported.
- As appropriate to limit overtime work and pay, prohibit such work without the advance written approval from a supervisor.
- If an employee fails to report time worked, but a manager knows he or she is working extra hours – such as sending or responding to emails after hours – then pay the employee for the time, but also issue the appropriate written warning or instruction to not work outside the shift, unless first approved by the employer.
- Adopt a policy requiring employees to review each paycheck and notify the employer of any inaccuracies or improper payments or deductions.
- Train managers on these policies, as spelled out more fully in the DOL guidance and with the assistance of employment counsel.