Summary
The Upshot
- In response to the COVID-19 pandemic, the DOL clarified an employer’s obligation to track and pay for all compensable time worked by non-exempt employees working remotely.
- This Bulletin does not create new guidance; it simply reaffirms the DOL’s long-standing position, which applies to remote or telework arrangements.
- Employers must have effective time-reporting procedures in place to ensure employees are paid for all hours worked.
- The Bulletin reaffirms that employers who have a system in place for employees to report hours worked that neither prevents nor discourages accurate reporting need not investigate further to uncover unreported hours.
The Bottom Line
FULL ALERT
As more employers embrace teleworking arrangements during the COVID-19 pandemic, the DOL issued a reminder to employers about their obligations to pay non-exempt employees for all hours worked, even if the work was not scheduled or requested. If the employer knows or has reason to believe that an employee is performing work, the time must be counted as hours worked, and compensated accordingly. Thus, employers are expected to use reasonable diligence to track employee time.
In order to meet the obligation of “reasonable diligence,” employers should implement time-keeping procedures and require non-exempt employees to accurately report their time. The DOL noted that if “an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.”
In designing a compliant time-keeping procedure, employers can require employees to report all hours worked, regardless of when or where. Or, employers can rely on an exception-based system, whereby employers assume that employees worked all their regularly scheduled hours, and then employees can report any additional time worked. No matter which method is used, for non-exempt employees, employers should promulgate policies that prohibit working outside normal hours without prior approval. The DOL also cautions that employees must not be prevented or discouraged from accurately reporting their time worked.
Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise employers on wage and hour compliance issues and represent employers in wage and hour audits conducted by state and federal agencies. Contact us today.
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