Tracking telework timekeeping

TOP TIP: Timekeeping and Telework – Guidance from the U.S. DOL

The surge in telecommuting during the COVID has raised many issues for employers, including compliance with the Fair Labor Standards Act. The DOL has issued guidance on telework pay that explains the legal standards applicable to the FLSA’s requirement to track and pay for employees’ hours worked, including remote workers.

The DOL reiterates that employers must pay for all hours worked, including hours not requested but “suffered or permitted” to be worked – meaning hours the employer knew or should have known about through reasonable diligence. However, employers are not required to pay for those hours worked that it did not know about and had no reason to know about: “[t]he reasonable diligence standard asks what the employer should have known, not what it could have known.”

In the teleworking context, the DOL states: “One way an employer generally may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work is by establishing a reasonable process for an employee to report uncompensated work time.” The employer, of course, cannot discourage accurate reporting under this process. It is also important that the employee knows that the process exists and how to use the process.

Notably, if an employee fails to report unscheduled hours worked through the procedure, the DOL specifically states that “the employer is generally not required to investigate further to uncover unreported hours.” Therefore, as a normal matter, the employer does not need to sort through all its records/data to determined hours worked. As the DOL states, “Though an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.”

The important takeaways from this guidance are:

• Employers are responsible for tracking and paying for the hours worked by telecommuting employees.
• Employers may rely upon normal work schedules to establish the hours worked, but must set up a reasonable process for employees to report unscheduled hours worked. We recommend that such process include obtaining supervisory approval before working such hours
• Employees must be trained on the process.
• Employees must not be discouraged from using the process, as this may lead to claims of off-the-clock work – a popular claim for plaintiffs’ employment attorneys.

This blog was written by Fiona Ong at Shawe Rosenthal, which authors our Maryland Human Resources Manual. You can find the original and their Labor & Employment Report blog on their website