Among the effects of the pandemic was a surge in remote work and telecommuting. As such, there have inevitably been numerous questions and issues facing employers. How to foster remote communication, how to create a company culture when people are disbursed, how to handle terminations remotely—the list goes on.
As remote work seems to continue to be going strong in numerous industries and business sectors, it is important that employers stay informed regarding any and all applicable rules and regulations governing telework.
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At the end of August 2020, the U.S. Department of Labor (DOL) Wage and Hour Division issued Field Assistance Bulletin No. 2020-5 regarding employers’ obligation to accurately account for how much time employees work when away from their employer's facilities. The subject of the bulletin was “Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.”
The bulletin stressed the fact that employers had to pay for those hours not requested but that were “suffered or permitted” to be worked that the employer knew about through reasonable diligence; this includes remote and telework. Thus, compensable time is all time the employer “knows or has reason to believe” work is being done, authorized or requested or not.
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The key here, under the Fair Labor Standards Act (FLSA), is that employers make reasonable provisions for employees to report all hours worked, scheduled and unscheduled, and are obligated to track the number of hours worked. Employers, however, are not required to go to extra efforts to find unreported hours of work if employees do not follow the reasonable process to report their hours, but the bulletin states that employers are obligated to prevent the performance of unauthorized or unwanted work. Employers can discipline employees who perform unauthorized work, but they are still required to pay the employee for the time worked and factor it into the overtime calculation.
The grey area becomes those hours that employers don’t know about and/or are not requesting. In other words, what happens when an employee is undertaking work that is otherwise unscheduled? As the employer, it is up to you to put policy into place and enforce rules pertaining to unscheduled work. If you don’t want an employee to perform a certain task or job, you need to make an effort to prohibit such work from being done, otherwise, if you know about the work, you are generally required to pay for work that has been done.
The most efficient way to avoid issues related to unscheduled work is to ensure that you have an effective and accessible reporting and time-tracking system established. A 2021 survey found that 60% of those polled were using monitoring software to track hours and productivity. Numerous options are available for your remote workforce, both in terms of platforms and also apps.
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The important thing is to set up a way to stay on top of assigned (and unassigned tasks), maintain accountability and thus have control over how many hours you are paying your employees. You also may want to do spot-checking of non-payroll records of employee activity, especially with technology like email and digital access.
The telework movement, it seems, is here to stay. More and more issues of this nature are bound to arise, with more and more employers having to figure out how to streamline processes and maintain organization and control over their disbursed labor force. It is incredibly important moving forward to make sure that whatever protocol you do put in place is compliant with the FLSA. If you are unsure of relevant rules and regulations pertaining to telework and hours paid, we are here to help.
Our HR experts understand the finer points of employment law; we’re here to guide you through what could be complex territory. Schedule your consultation today and see how we can be of assistance to your Kansas City area business.
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