Wage and Hour Blog
Tracking Hours Worked Remotely

Tracking Hours Worked Remotely

On August 24, 2020, the United States Department of Labor (“DOL”) issued a Field Assistance Bulletin in order to provide guidance regarding employers’ obligation under the Fair Labor Standards Act (“FLSA”) to make and maintain accurate records of any employees who worked remotely as in away from any worksite or premises controlled by their employees.

The DOL noted that this will likely be a common issue in the current pandemic, as well as in the future as such remote work becomes more widespread.  In particular, the DOL noted that the “Bureau of Labor Statistics estimated in 2019 that roughly 24 percent of working Americans performed some work at home on an average day.  And these arrangements have expanded even further in 2020 in response to the COVID-19 pandemic.”

In this recent Bulletin, the DOL offered guidance by emphasizing several long-standing principles under the FLSA, including the following:

  • An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home;
  • If an employer knows or has reason to believe that work is being performed, the employer must track and pay for these work hours;
  • Employers must exercise reasonable diligence to account and pay for hours worked remotely; and
  • Employers bear the burden of preventing remote work when it is not desired and the mere promulgation of a rule against such work will not suffice.

The DOL’s guidance encourages employers to not only establish reasonable reporting mechanisms for such work, but also to properly instruct employees on how to use such a reporting system in order to avoid common issues and disputes about hours worked remotely. 

While the law recognizes there are some realistic limits on the employers’ duty to control remote work (i.e., employers are not liable to pay for work for which it had no actual or constructive knowledge), the DOL cautioned that employers may still be held to have possessed “constructive knowledge” (i.e., should have known of the hours worked remotely) where its internal non-payroll records, such as data or information from work-issued electronic devices, indicate to the employer that the employee is working.  According to the DOL, employers could be expected to review such non-payroll records and pay for such remote work, depending on the circumstances.

In sum, the DOL’s recent Field Assistance Bulletin provides a good refresher for employers and employees on their respective rights and obligations under the FLSA as they pertain to timekeeping for work performed in remote settings.  Check back for more developments on guidance from the DOL regarding wage and hour issues in the current pandemic and ever-evolving modern workplace.