Thursday, August 27, 2020

New DOL guidance on compensation for teleworking employees

DOL published a new Field Assistance Bulletin: Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work. Generally, employers must pay nonexempt employees for time worked, "if the employer knows or has reason to believe that work is being performed." 

Employers must, as a result, pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.

Allen v. City of Chicago, 865 F.3d 936, 938 (7th Cir. 2017). Obviously, this presents some challenges for employers of remote employees. Specifically, how do they know what work is being done when the employees are teleworking from home?

Not official use.
Employers must "exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work." That's great, but what does it mean? Well, one way for an employer to show reasonable diligence is by "establishing a reasonable process for an employee to report uncompensated work time." Allen at 938. 

What if an employee doesn't report the time, but the employer could discover that the work has been completed? Per the new bulletin (relying a lot on Allen):
[I]f 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 . . .  Though an 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, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.

The bulletin also cites case law, noting that employers need not sort through phone records, supervisors' knowledge, computer aided dispatch ("CAD") records, etc. 

Bottom line: Employers can avoid a lot of potential wage and hour headaches (and, by "headaches," I mean DOL investigations and lawsuits) by simply establishing an easy way for employees to report their time. Some employers utilize automated tools - not a problem per se, but employees must have some way to report additional time worked if it happens.

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