Balancing work and family while working from home means many employees will work outside their normal schedule. This presents unique challenges to employers in meeting their obligations under the Fair Labor Standards Act (“FLSA”). To address this, on August 24, 2020, the United States Department of Labor (“DOL”) issued Field Assistance Bulletin No. 2020-5 to clarify ways employers may “exercise reasonable diligence in tracking teleworking employees’ hours of work.”
Generally speaking, the FLSA requires employers to pay employees for all hours worked, including work not requested but that is “suffered or permitted.” That includes work performed at home. If an employer knows or has reason to believe that an employee is performing work, they must count that time as hours worked. Specifically, employers may have actual or constructive knowledge of additional, unscheduled hours worked by employees. Courts consider whether employers should have used reasonable diligence to acquire knowledge of these unscheduled hours. However, if an employer did not have reason to know the employee was performing unscheduled work, the FLSA does not require the employer to pay the employee for such work.
Field Assistance Bulletin 2020-5 clarifies that using reasonable teleworking reporting procedures constitutes “reasonable diligence” to know whether employees are working outside normal working hours. Employers must not discourage employees from reporting their hours, either explicitly or implicitly, because doing so may not constitute “reasonable diligence” and will thus subject them to FLSA liability for unpaid work.
On the other hand, employees must take advantage of such reporting systems to report hours. The Bulletin states that “if an employee fails to report unscheduled hours worked through [a reporting procedure], the employer is generally not required to investigate further to uncover unreported hours.” For example, while an employer may be able to monitor after-work use of work-issued devices, “reasonable diligence” does not require the employer to sort through that usage information to determine whether its employees performed unscheduled work. As such, when an employee fails to follow reasonable time reporting procedures, and is not discouraged from using the reporting system, she thwarts her employer’s ability to prevent unscheduled work or know about it.
Application and interpretation of this Bulletin will be different for every business, as will selecting and implementing a reasonable telework reporting system. That is why the attorneys of DBL Law are prepared and ready to help you navigate the regulatory climate surrounding COVID-19 and implement practical solutions that deliver clean and consistent results.
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