Do you know how many hours your employees work while teleworking from home? If not, now may be a good time to review and implement policies and practices that accurately track this information. Doing so may avoid future wage and hour claims for you non-exempt employees. (As a quick reminder, non-exempt employees typically are paid on an hourly basis, but just because you pay employees a salary does not mean that they are automatically exempt from overtime!)
Last month, the United States Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5, which reviewed an employer’s obligation to exercise reasonable diligence in tracking teleworking employee’ hours of work. The Fair Labor Standards Act (“FLSA”) generally requires employers to compensate their non-exempt employees for all hours worked, including overtime hours. As DOL interpretive rules further explain, work not requested but “suffered or permitted” is considered work time that must be compensated. This principle applies equally to work performed away from the employer’s worksite or premises, such as telework performed at the employee’s home. DOL regulations further state that if the employer knows or has reason to believe that the work is being performed, it must count the time as hours worked. Employers are required to exercise control of their employees to ensure that work is not performed that they do not wish to be performed.
So what does this mean for employers? The DOL makes clear that an employer must come up with a way to ensure that its employees are accurately reporting time and that the employer is paying the employee for all time worked. This issue arises most often when an employee becomes eligible for overtime for hours worked over 40 hours each week. Employers can face penalties in the form of double, triple or sometimes even quadruple damages, attorneys’ fees, and other civil penalties for failing to pay employees for wages deemed earned, even if the employer did not actually know the employee was working.
In light of the above, here are a few tips to help employers navigate this labyrinth amidst the pandemic:
• Have a written policy in place that makes clear the teleworking expectations for all employees. The policy should set working/business hours and, if applicable, state that non-exempt employees should not work more than 40 hours per week without authorization.
• Create and issue a telework agreement to be signed by each teleworking employee. This agreement will advise the employee of specific expectations for hours worked along with other specific requirements.
• Follow-up with employees to ensure that they are not working additional hours. One hint of an employee working additional but unrequested hours may be emails sent after hours or on weekends. The employer should be diligent in contacting the employee to remind him or her that working additional hours is not authorized.
• Encourage managers to train their subordinates to accurately log time, regardless of how many hours are worked each week. Managers should be trained not to discourage accurate time accounting.
Meredith S. Campbell Chair, Employment and Labor Group
Shulman Rogers email@example.com | T 301.255.0550 | F 301.230.2891