With the expansion of telework arrangements in response to the COVID-19 pandemic, the U.S. Department of Labor (DOL) has seen the need to address a much more common issue facing employers: telework. On August 24, 2020, the DOL issued Field Assistance Bulletin (FAB) No. 2020-5. FAB 2020-5 clarifies employers' obligation to exercise reasonable diligence in tracking teleworking employees' hours of work. In a telework or remote work arrangement, the question of the employer's obligation to track hours actually worked for which the employee was not scheduled may often arise. While FABs are not law, they do provide insight into the enforcement perspectives of the DOL.
Per FAB 2020-5, if an employer knows or "has reason to believe" that work is being performed, the time must be counted as hours worked. In other words, an employer is obligated to compensate employees for work it has reason to believe is being performed even if the employer did not want the work done and has a rule against doing the work. FAB 2020-5 further states that an employer is required to exercise "reasonable diligence" to acquire knowledge, whether actual or constructive, regarding employees' unscheduled hours of work.
For example, an employer can exercise "reasonable diligence" by establishing a reasonable process for an employee to report uncompensated work time; provided, however, that the employer does not implicitly or overtly discourage or impede employees for reporting work time. If an employee fails to report unscheduled hours under such a procedure, the employer is generally not required to investigate further to uncover unreported hours.
Notably, the DOL states that employers are not required "undertake impractical efforts," such as sorting through or cross-referring employees' non-payroll records to determine whether its employees worked hours beyond what they reported (time-stamped emails, text messages, etc.). When an employee fails to follow reasonable time reporting procedures, he or she prevents the employer from knowing its obligation to compensate the employee, and an employer is not liable for any such "off-the-clock" work.
Now is a good time to review and assess whether your timekeeping policy/procedure is sufficient in light of the DOL perspectives set forth in the new FAB. Contact an attorney with our Firm to discuss best practices for trying to keep your company compliant in today's changing work environments.
If you have questions about this HR-Alert or any other issue relating to employment law, please contact an attorney at our Firm.