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 employers’ facilities. The subject of the bulletin is “Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work”.
The DOL issued the reminder because of the unprecedented number of employees working remotely since the coronavirus pandemic started, as well as to emphasize that the rules apply to other remote work and telework arrangements.
What are Field Assistance Bulletins?
Field Assistance Bulletins (FABs) are issued to provide guidance for questions that arise due to new situations within the DOL scope of authority. They are part of overall guidance provided by DOL that included releases and executive order communications.
FABs provide guidance on enforcement and clarification of agency policy and provide employers with a better understanding of DOL enforcement of federal employment law.
Employer Obligations Regarding Compensable Time
Under the federal Fair Labor Standards Act (FSLA), employers are required to compensate employees for all hours worked, including requested and allowed hours of work, and telework and remote work. The bulletin clarifies that compensable time is all time the employer “knows or has reason to believe” work is being done, authorized or requested or not.
Under the FSLA, employers are required to provide reasonable procedures for employees to report all hours worked, scheduled and unscheduled, and are obligated to track the number of hours worked. The DOL does not require employers 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.
What it Means for Employers
In a news release about the bulletin, Wage and Hour Division Administrator Cheryl Stanton explains that the bulletin was prompted by the work flexibility required by pandemic conditions, such as telework and working different schedules. With more workers than ever working from home while juggling children at home for remote learning and other unique conditions, the bulletin serves as a reminder of employer obligations to track and count all hours worked.
More employers in 2020 are managing telework and remote workforces with varying schedules, many for the first time, and there may be confusion over “when an employer ‘has reason to believe that work is being performed,’ because the last interpretive rules regarding the requirement to pay for all hours worked were issued in 1961.
As further explained by attorney Kathleen Caminiti for Society of Human Resource Management (SHRM), even though employers are not required to take extra or unusual efforts to find unreported hours of work, they should do some checking if it’s suspected, such as work emails outside of scheduled working hours. Although employees have responsibility to use established processes for reporting their hours, the employer is still required to pay for all hours worked and may want to do spot-checking of non-payroll records of employee activity especially with technology like email and digital access.
Writing for Law and the Workplace, Allan Bloom reminds employers that they are required to pay all time worked by non-exempt (over-time eligible) employees, including remote hours workers. Bloom says there should be prompt and accurate timekeeping processes in place for reporting of and paying for hours worked. He recommends investigating and resolving issues with unauthorized work and hours worked reporting promptly to keep an accurate and compliant timekeeping system.