Even as many states reopen their local economies, many employers are continuing to allow employees to work remotely.
Remote work by employees who are non-exempt (workers who are entitled to earn the federal minimum wage and qualify for overtime pay) pose many challenges for employers.
One of the most problematic?
Ensuring that employees are paid properly for time worked.
The U.S. Department of Labor’s (DOL) Wage and Hour Division recently issued Field Assistance Bulletin (FAB) No. 2020-5 regarding employers’ obligations to use reasonable diligence in tracking remote employees’ hours.
According to the Fair Labor Standards Act (FLSA), employers are required to pay non-exempt employees for all hours worked.
Put another way – even if an employer did not request an employee to work, if an employer knows or has reason to believe an employee performed a work-related task, the employer must pay that employee for that time.
The FLSA also requires employers to pay employees for hours worked based on either “actual knowledge or constructive knowledge” of the employees’ work hours.
A summary of the new guidance:
The Department of Labor’s new guidance should be helpful to employers.
The guidance makes it clear that employers must “exercise reasonable diligence” to see that non-exempt employees are paid for all time worked. “One way an employer generally may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work is “by establishing a reasonable process for an employee to report uncompensated work time.” A caveat – employers “cannot implicitly or overtly discourage or impede accurate reporting” under their policies.
Here is the important part for employers…“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.” This rule applies even if the employer “may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours ….”
Finally – an employer’s “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.”
If you’re an employer and have questions about labor and employment law, consider calling on the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are exclusively an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 25 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.
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