FLSA and tracking remote employee hours worked — new guidance from WHD helps employers

On February 9, the U.S. Department of Labor’s Wage and Hour Division (WHD) published instructions to its enforcement representatives on employers’ obligations to use “reasonable diligence” in tracking remote employee work hours.

Background

All employees must be paid properly under the Fair Labor Standards Act (FLSA), and nonexempt (“hourly”) employees must be paid for all hours worked, regardless of where those hours worked are performed.

Generally, breaks of 20 minutes or less are counted as hours worked and must be paid. Longer breaks, however, during which employees are completely relieved from duty, and that are long enough for employees to use the time effectively for their own purposes are not hours worked and need not be paid.

Remote employees

With remote employees, employers should know how long breaks are and, therefore, the hours actually worked. If the employer knows (or has reason to believe) that work is being performed, the time must be counted as hours worked.

Employers can meet their obligation to exercise reasonable diligence to obtain knowledge on employees’ unscheduled work hours by providing a reasonable reporting procedure for non-scheduled time and then paying employees for all reported work hours, even if those hours were not requested by the employer.

Tracking hours worked

The WHD does not dictate the reporting procedures employers must use; they leave that up to the organization. Employers generally know what employee schedules are. From there, employers may use anything from technology to the honor system to determine actual hours worked. But whatever is used, it should not prevent or discourage employees from accurately reporting the hours they have worked. Of course, documentation always helps.

Watch for negative work patterns

Employers might also watch for signs of concern, such as employees who:

• Respond to questions in an unreasonable amount of time,
• Show a deterioration of work quality, or
• Display unwarranted stress or negativity.

If an employee fails to report unscheduled hours worked through whatever process is required, employers do not have to go above and beyond to investigate further to find unreported hours of work and pay employees for those hours.

Having a good recordkeeping process in place and supporting it with solid documentation can help protect employers from the risk of FLSA violations.

Key to remember: Employers must track nonexempt remote employees’ hours worked, but should have a method that is effective and does not discourage reporting of hours worked, even if those hours worked are more than scheduled or expected. If employees don’t follow the process to report hours, they could risk discipline.