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In response to the sharp uptick in remote work during the coronavirus pandemic, the U.S. Department of Labor in August 2020 issued guidance to employers of their obligation to track the number of hours of compensable work performed by employees who are teleworking.
Under the Fair Labor Standards Act, employer must pay employees for all hours worked, including work not requested but 'suffered or permitted.”
That includes work performed at home.
The law requires an employer to exercise its control and see that the work is not performed if it does not want it to be performed. That means employers must, as a result, pay an employee for all work the employer knows about - even if the work was unauthorized or in violation of a rule.
This new Labor Department guidance does not reflect any change in the compliance standards or employer obligations.
However, it does highlight during this COVID-19 environment - in which remote work arrangements have become commonplace - the continued need for good documentation.
Therefore, employers should update and implement reasonable time reporting procedures that continue to allow for accurate tracking and reconciling hours worked and hours paid.
If an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours.
The Labor Department's new guidance serves as a reminder of the importance of maintaining clear and accurate procedures for reporting, tracking and paying for remote hours worked.
Employers should require employees certify their time records are truthful and complete. Management should promptly review those records as soon as possible, and quickly address and resolve any issues that arise, including those involving unauthorized work.
The number of wage and hour complaints are on the rise, and penalty payouts to employees - and former employees - are increasing substantially.
In light of this trend, employers would be well-advised to review their policies and procedures for time keeping to ensure they are meeting legal standards in this new telework world.
And remember, wage and hour complaints typically are not covered under employment practices liability insurance.
Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.