The COVID-19 pandemic has led to a change of the office and an explosion of distant work, together with for workers beforehand not coated underneath employers’ telecommuting insurance policies. Regardless of the reopening of most state economies, many employers are persevering with to permit their workforces to work remotely. Distant work by nonexempt workers can pose a problem with regard to making sure workers are paid all the time labored, as the normal workday could also be blurred in a distant setting. On August 24, 2020, the U.S. Division of Labor’s (DOL) Wage and Hour Division issued Discipline Help Bulletin (FAB) No. 2020-5 relating to employers’ obligations to make use of affordable diligence in monitoring distant workers’ hours. The steering affirms the worth of a transparent system for reporting time and a requirement that workers promptly and precisely report their time—particularly in a distant work setting.
Common Obligations Below the FLSA
Below the Truthful Labor Requirements Act (FLSA), employers are obligated to compensate nonexempt workers for all hours the workers are “suffered or permitted” to work. In different phrases, even when an employer didn’t request that an worker carry out work, if the employer is aware of or has purpose to imagine the worker carried out the work, the employer should pay the worker for his or her time performing the work.
The FLSA additionally requires an employer to “train its management and see that the work will not be carried out if it doesn’t need it to be carried out.” Employers bear the burden of stopping work that they are not looking for carried out, and subsequently have the authority to promulgate and implement guidelines prohibiting workers from working when they aren’t speculated to be working. Employers might self-discipline workers for performing unauthorized work—however they need to pay for the time.
The FLSA additionally requires employers to pay workers for hours labored based mostly on both “precise data or constructive data” of the workers’ work hours. Employers usually have precise data of distant workers’ frequently scheduled work and can have obtained precise data of hours labored by way of different means, equivalent to “worker studies or different notifications.” The DOL’s steering instructs that “[a]n employer might have constructive data of extra unscheduled hours labored by [its] workers if the employer ought to have acquired data of such hours by way of affordable diligence.”
The FLSA and Distant Work
FAB No. 2020-5 confirms that whereas it’s an employer’s obligation to make each effort to forestall undesirable work, the employer’s responsibility to take action will not be limitless. The DOL acknowledges that in a distant work setting, an employer might have problem exercising management when the employer doesn’t have purpose to imagine work is being carried out—and subsequently the employer’s obligation is “not boundless.” Accordingly, the steering states that an employer should “train affordable diligence” to make sure workers are paid all the time labored. The employer might fulfill its obligation underneath the FLSA by establishing a system that requires nonexempt workers to precisely report and report all time labored every day. Employers may additionally pay for all scheduled working time and have insurance policies requiring workers to self-report work time that isn’t in any other case scheduled. Employers “can not implicitly or overtly discourage or impede correct reporting” underneath their insurance policies.
Within the occasion that an worker fails to report unscheduled hours labored by way of this process, the DOL steering states that an “employer is mostly not required to analyze additional to uncover unreported hours.” That is true even when the employer “might have entry to non-payroll data of workers’ actions, equivalent to data exhibiting workers accessing their work-issued digital gadgets outdoors of reported hours ….”
Likewise, the DOL notes that an employer’s “failure to compensate an worker for unreported hours that the employer didn’t learn about, nor had purpose to imagine was being carried out, doesn’t violate the FLSA.” Citing case regulation, the DOL additionally identified that an worker who ‘“fails to comply with affordable time reporting procedures … prevents the employer from figuring out its obligation to compensate the worker.’”
The COVID-19 pandemic has offered many distinctive challenges for employers, together with points arising from elevated teleworking. The DOL’s steering supplies some sensible takeaways for employers to think about because the pandemic continues:
Regardless of the altering work setting, employers nonetheless have the identical obligations underneath the FLSA to compensate workers for all hours labored, together with all work carried out remotely. The failure to abide by these obligations can lead to hefty damages, which might embody unpaid wages, liquidated damages, and attorneys’ charges.
As described above, the duty to compensate workers for all work that employers have purpose to imagine occurred stays. When an employer has or ought to have precise data that workers are working outdoors of their scheduled hours—as evidenced by work produced, communications, or different studies—it’s the employer’s responsibility to compensate the workers for the hours labored.
The DOL steering factors out that “[e]mployers are required to train management to make sure that work will not be carried out that they don’t want to be carried out.” In gentle of this requirement, employers might need to preserve insurance policies making clear that workers shouldn’t be working outdoors of their scheduled work instances. Employers may additionally need to have insurance policies in place for workers to report unscheduled or uncompensated work hours.
Lastly, as soon as the above-referenced insurance policies are in place, employers might need to contemplate whether or not they’re being enforced persistently. On this regard, it could be helfpul to be sure that workers know to work throughout their scheduled work hours and that the failure to take action with out approval will end in corrective motion.
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