The COVID-19 pandemic has led to an explosion in teleworking arrangements. The U.S. Department of Labor’s (DOL) new Field Assistance Bulletin clarifies employer obligations to track compensable work hours of employees who are teleworking or otherwise working away from their regular workplace.
The guidance reaffirms that an employer must pay its employees for all hours worked. This includes work not requested but allowed and work performed at home. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Failure to properly pay regular hours or overtime hours worked can result in expensive litigation or DOL action, which can include payment of liquidated damages.
This new guidance places the burden on the employer to have systems in place and to “exercise its control and see that work is not performed if it does not want it to be performed.” The DOL makes it clear that just having a rule against unauthorized work is not enough. Keeping track of hours and employee work production also plays a role in what actual or constructive knowledge the employer had as to the off-site work being performed. However, the guidance notes “the FLSA stops short of requiring the employer to pay for work it did not know about and had no reason to know about.”
Please contact Mark Fijman or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance. For more information related to COVID-19, see Phelps’ COVID-19: Client Resource Portal.