COVID-19 has forced many employees to work from home or "telework". This has left employers struggling with how to track hours to make sure they are in compliance with federal and state wage and hour laws. On August 24, 2020, the US Department of Labor, Wage and Hour Division, issued Field Assistance Bulletin No. 2020-5 in an effort to provide guidance regarding the employer's obligation under the Fair Labor and Standards Act (FLSA or Act) to exercise reasonable diligence in tracking the hours of work of teleworking employees. (https://www.dol.gov) The following are highlights of the bulletin.
Question: Does this guidance only apply to telework or remote work arrangements due to COVID-19?
A: No. The obligations of the employer applies to all telework or remote work arrangements between employers and their employees, not just to those in response to COVID-19.
Q: What time should be counted as "hours worked"?
A: An employer is required to pay its employees for all hours worked, including work not requested, but suffered or permitted by the employer, including work performed at home. This includes the time the employer knows or has reason to believe that the employee is continuing to work. All of this time must be counted as hours worked.
Q: When does an employer have knowledge that the employee is continuing to work beyond their usual hours?
A: An employer may be considered to have actual or constructive knowledge (reason to believe) of additional unscheduled hours worked by their employees if the employer has acquired knowledge of the unscheduled hours through reasonable diligence.
Q: How does an employer exercise "reasonable diligence"?
A: An employer exercises reasonable diligence by providing a reasonable reporting procedure/system for non-scheduled time.
Q: Must an employer pay for non-scheduled hours worked by an employee?
A: Yes. An employer must pay employees for all reported hours of work, even hours not requested by the employer. Employers are required to exercise control to ensure that work is not performed that they do not wish to be performed.
Q: What if an employee does not report unscheduled hours worked through the reporting system set up?
A: If an employee fails to report unscheduled hours worked through the reporting system set up to capture the unscheduled hours worked, an employer is not required to go to impractical efforts to investigate and uncover the unreported hours of work. However, an employer's time reporting process/system will not constitute reasonable diligence if the employer either prevents or discourages an employee from accurately reporting the time the employee worked. An employer cannot accept the benefits of such work without compensating for it.
Q: Can an employee waive his/her rights to compensation under the Act?
A: No.
Q: Is an employer in violation of the Act for not paying an employee for unreported hours that the employer did not know about and had no reason to believe was being performed?
A: No.
Recommendations: Not only should employers have an electronic or paper time sheet showing total hours worked by an employee, the time sheet should also reflect the start and end times for the employee's meal period, as well as a certification that the employee has taken his/her daily rest breaks.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com.
Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Alexis Cirkinyan
Ballard Rosenberg Golper & Savitt, LLP
