DOL Releases New Guidance For Employers Tracking Remote Hours

With the substantial increase in remote work caused by the COVID-19 crisis, the United States Department of Labor (“DOL”) has released new guidance concerning how employers should record and pay for remote work for hourly employees under the Fair Labor Standards Act (“FLSA”). Some of the key features of these guidelines include the following:

• An employer must pay its hourly employees for all hours worked, including work permitted even if not requested. This includes work that the employer knows or has reason to believe is being performed.
• Employers must exercise reasonable diligence to acquire knowledge of such hours. Employers can show reasonable diligence by providing a reasonable reporting procedure for non-scheduled time.
• If an employee does not report unscheduled hours worked through the procedure implemented by the employer to record remote work, the employer is generally not required to investigate further.
• If the employer prevents or discourages an employee from accurately reporting the time he or she worked, the reporting procedure will not fulfill the reasonable diligence requirement.

Even before this new guidance, the FLSA made the employer responsible for ensuring that nonexempt employees are paid for all hours worked. Where the employer knows or has reason to know a nonexempt employee performed work, regardless of whether it is recorded on a timesheet, the employee must be paid. Thus, it is vitally important for employers to implement procedures for accurately recording all hours of work by non-exempt employees, including all remote work.

Given the effects of the COVID-19 pandemic, guidance on this issue is complex and changing rapidly. If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.