With employees continuing to work from home for the foreseeable future during the COVID-19 pandemic and beyond, keeping track of employees’ hours is a whole different ball game. Work schedules may not be as clearly defined and additional virtual tasks may arise beyond normal working hours. In response, the U.S. Department of Labor’s Wage and Hour Division issued guidance to clarify FLSA-required tracking of employee hours.
The Division’s August 24, 2020 Field Assistance Bulletin discusses employers’ obligation to exercise “reasonable diligence” in tracking employees’ work hours, as the FLSA requires paying employees for “all hours worked.” The rule is: If the employer knows or has reason to believe work is being performed, the time must be counted as hours worked. This includes an employer’s actual or constructive knowledge of additional unscheduled hours an employee works. The Division suggests that courts consider whether the employer exercised reasonable diligence to know of the employee’s additional hours. For example, by providing a reasonable reporting procedure for non-scheduled time worked in order to compensate employees for all reported hours, even those not requested by the employer.
An employer’s obligation to pay is not limitless though – the employer is not required to pay for work it did not know about and had no reason to know about. The Division’s guidance informs employers there is no requirement to undertake impractical efforts (such as sorting through email and other non-payroll records of employees’ activities) to investigate and compensate employees for unscheduled hours an employee fails to report. The onus is on the employer though to control workflow to prevent employees from performing work the employer does not want performed. Thus, exercising control over remote work is important for an employer to be able to show their knowledge or belief of what work each employee performs.
Especially in a remote work environment, employers should clearly communicate what work they want performed. Otherwise, an employer may have to pay for extraneous work performed, even if the hours are unrecorded. While not binding, the Division’s guidance is instructive to employers, employees, and courts, as we all figure out how to track hours as telework expands and becomes the new normal.