January 21, 2021

Volume XI, Number 21

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Department of Labor Wage & Hour Division Provides Work From Home Guidance

On August 24, 2020, the Wage and Hour Division of the Department of Labor (DOL) published guidance addressing employer obligations to track employee hours while teleworking. The DOL emphasized that though the guidance is being issued in part due to the increase in teleworking arrangements with COVID-19, it applies to all telework or remote work arrangements, not only those caused by the pandemic.

The Legal Standard

Under the Fair Labor Standards Act (FLSA), employers are required to compensate employees for all “hours worked.” Hours worked includes any time the employee spent that was “suffered or permitted” by the employer, even if it is not requested or authorized by the employer. 29 C.F.R. § 785.11. Employers are expected to “make every effort” to exercise control over the workplace and prevent unwanted work from being performed by employees. 29 C.F.R. § 785.13. If an employer knows or has reason to believe that work is being performed, the time is “hours worked.” 29 C.F.R. § 785.12. Employers must pay for all hours worked, even if they had a rule against performing the work in the first place.

DOL Guidance

The guidance notes that “employers must pay for all hours worked that [they] know or [have] reason to believe was performed.” If an employer is aware of hours worked, whether through a time system or other means, they are responsible for paying the employee even if the hours were unauthorized.

Importantly, the guidance applies a “reasonable diligence” standard to determine when employers have “reason to believe” work was performed. This standard focuses on what work time employers should have known about, not what they could have known. Though employers could be liable if they actually know of an employee working uncompensated hours, employers are not required to sift through any available data (e.g., network access times or phone calls to supervisors) to determine whether employees are accurately recording time.

Employers can exercise reasonable diligence by creating a mechanism to learn what hours employees are working. The DOL is encouraging employers to set up a process for employees to report uncompensated work time. Employers must train employees on the process and cannot discourage or impede accurate reporting of additional hours worked.

Once a process to report uncompensated work time is in place, employees are responsible for reporting uncompensated time through the mechanism provided. If the employee fails to do so, the employer is generally not required to investigate the matter further.

Employer Next Steps

Employers should evaluate their time reporting mechanisms to ensure there is a way for employees to report uncompensated work time, especially time worked at home. Once the mechanism is established, employers should train employees on appropriate work times and on reporting uncompensated time.

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© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 239
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About this Author

Stacey L. Smiricky Labor & Employment Litigation Attorney Faegre Drinker Law Firm
Partner

Stacey Smiricky is a dedicated employment litigator and counselor who puts clients above everything else. She represents businesses in workplace and commercial disputes and counsels on proper employment practices and risk management.

Employment Counselor

To manage their litigation risk and help them operate smoothly, Stacey advises employers on best practices and policies and trains and counsels management and HR professionals. She assists with:

  • Hiring, discipline and termination...

312 212 6525
Susan W. Kline Labor & Employment Litigation Attorney Faegre Drinker Law Firm Indianapolis
Partner

A former human resources function leader and employment litigator with trial experience, Susan Kline is dedicated to helping employers take practical, effective and balanced action in HR legal matters to promote the organization’s overall business interests. Susan helps clients manage employment-related matters by providing counseling, training, and policy advice and review services on issues such as leave and disability management, workforce restructurings, human resources processes, employee discipline and discharge, and employment agreements.

...
317 237 1059
Taylor L. Haran Employment Lawyer Faegre Drinker Law Firm
Associate

Taylor Haran collaborates with the employment litigation team to defend employers in single-plaintiff, multiplaintiff, and class and collective claims brought by their current and former personnel. She spent significant time during law school gaining firsthand experience in the employment law space through positions in both private practice and municipal government.

For eight months during law school, Taylor volunteered as a law clerk with the City of Chicago’s Department of Law, Labor Division. There she wrote memoranda on issues such as the Family and Medical Leave Act (FMLA),...

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