DOL Provides Guidance on Tracking Telecommuters' Work Hours

Employers must use reasonable diligence in tracking nonexempt telecommuters' work hours and may do this by providing a reporting procedure for unscheduled time, the Department of Labor (DOL) stated in Aug. 24 guidance. The workers then must be compensated for all reported work hours, even those not requested by the employer.

"The guidance is consistent with long-understood employer obligations regarding record-keeping and paying for compensable time requirements," said Lori Armstrong Halber, an attorney with Reed Smith in Philadelphia and Princeton, N.J. "Employers have always been obligated to pay workers for all time 'suffered or permitted to work'—the idea being that the work performed is to the employer's benefit whether specifically authorized or not. This is why employers can discipline employees who work unauthorized overtime, for example, but cannot refuse to pay them for it."

She said the most helpful part of the guidance was its explanation that employers do not have to sift through information-technology (IT) records to investigate whether employees are actually working. Instead, employers can rely on time-keeping procedures and employees' obligation to accurately report time.

That said, an employer might review IT records to determine whether an employee is submitting false time records, Halber noted. "In addition, if the employer is aware that an employee is using e-mail after hours, for example, the employer should confirm that the employee is submitting time sheets for the time spent working so that the employee is being appropriately compensated," she said.

Reporting Procedure Is Key

In its guidance, the DOL stated that if an employee fails to report unscheduled hours worked through the employer's reporting procedure, "the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours."

The employer is, the DOL explained, required to pay employees for all hours worked. "If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked," the DOL said.

While it may be easy to define what an employer actually knows, it may not always be clear when an employer "has reason to believe that work is being performed" by telecommuters, the DOL said.

"This confusion may be exacerbated by the increasing frequency of telework and remote work arrangements," the DOL noted. The Bureau of Labor Statistics estimated that in 2019 approximately 24 percent of working Americans telecommuted each day. Telecommuting has become much more common this year in response to the pandemic.

The DOL added, "Though an employer may have access to nonpayroll records of employees' activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts." Such impractical efforts include "sorting through this information to determine whether its employees worked hours beyond what they reported."

The DOL said that when an employee does not use a reasonable reporting system to alert an employer to unscheduled hours of work, the employer is thwarted from preventing unwanted work. "Failure to compensate an employee for unreported hours that the employer did not know about, nor had reason to believe was being performed, does not violate the FLSA [Fair Labor Standards Act]," the DOL stated.

Employers May Have to Do Some Digging

In some cases, though, consultation of records outside the employer's time-keeping procedure can sometimes be relevant, the department cautioned. "Depending on the circumstances, it could be practical for the employer to consult such records," the DOL said.

Kathleen Caminiti, an attorney with Fisher Phillips Murray Hill, N.J., and New York City, said that employers should check records when they might expect additional work is done, for example, during a busy season or at the end of the month or when a project is due and the employer is aware that staff has worked long hours. "One spot-check might be the time stamp on an e-mail," she said. If the employer believes additional time has been worked, it should ask the employee.

Tracy Miller, an attorney with Ogletree Deakins in Phoenix, said, "Employers should still, of course, check records when they have reason to believe that work is being performed but not reported. For example, if a supervisor receives communications outside of scheduled hours and the hours are not reported, the employer should investigate. Willful ignorance is still no excuse."

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Prevent Off-the-Clock Work

"It should be made clear to nonexempt employees that they should not work outside of their normal working hours unless they have received prior approval," said Angelo Filippi, an attorney with Kelley Kronenberg in Ft. Lauderdale, Fla. "Failure to comply could result in discipline."

For nonexempt employees, employers should have policies that prohibit working off-the-clock, noted Ellen Bronchetti, an attorney with McDermott Will & Emery in San Francisco. "If an employer has an expectation that an employee was working from 8 a.m. to 4 pm. and the employee works later at night responding to e-mails, that could lead to wage and hour liability."