Excerpted from Lexology by Akerman LLP

Employers have struggled with identifying remote working hours for non-exempt employees juggling telework, child care and/or virtual learning during the pandemic. Employees will now bear the burden of properly recording those hours, under new enforcement guidance issued by the Department of Labor (DOL) in late August.

Under the federal Fair Labor Standards Act (FLSA), an employer has the obligation to pay non-exempt employees for hours worked that it knew or should have known about, even if the employer did not ask the employee to perform the work. It is not sufficient to simply order that employees not perform work off the clock. “The employer bears the burden of preventing work when it is not desired, and ‘the mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so,’” according to the DOL.

However, an employer does not violate the FLSA in failing to compensate an employee for unreported hours if the employer did not know about them or have reason to believe the hours were being worked. While recognizing that employers have an obligation to pay employees for all hours worked, the DOL noted that employees must bear the burden of monitoring and tracking their work hours in a remote work setting. The DOL explained that an employer who provides employees with a reasonable reporting procedure for non-scheduled time and pays employees for all hours recorded (scheduled or unscheduled) satisfies its obligation under the FLSA to track employee’s work hours. Employers need not undergo “impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.”

This new guidance helps clarify when an employer may be considered to have knowledge that an employee worked unrecorded hours. When employees are working in person at the company worksite, an employer may see an employee arriving early, working during his or her lunch break, or staying late to finish a project. When an employee works remotely, the company does not have that same opportunity.
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