DOL’s Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2020-5 (pdf) reiterating that pandemic or no, the FLSA requires employers to compensate employees for all hours worked remotely when the employer “knew or had reason to believe” they’d put in the time. WHD indicated the bulletin’s timing relates to the increasing rate of COVID-19 era teleworking.
WHD pointed employers to pre-pandemic federal caselaw indicating employers could satisfy this particular FLSA standard by compensating employees for any non-scheduled time reported through a “reasonable reporting procedure.” This procedure should allow reporting of even those hours the employer hasn’t requested the employee to work. If an employee fails to report unscheduled hours, the employer would not be required to undergo “impractical efforts” to investigate, uncover, or, ultimately, compensate employees for them. Employers must be careful not to prevent or discourage an employee from accurately reporting these unscheduled hours.
With more remote employees, and no clear end to the pandemic in sight, how can employers meet this FLSA standard?
The key takeaway from all of this is that employers should have robust telework policies that include remote work timekeeping protocols and require employees to report all time worked, regardless of whether it was scheduled or directed by the employer. Employers adopting such measures should enjoy some degree of protection for “off-the-clock” wage-hour claims.