Is your Florida business properly tracking your employees’ time when they telework?

Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

The U.S. Department of Labor (“DOL”) recently issued a new document to clarify the obligations that employers have when tracking teleworkers’ compensable hours.

In response to the coronavirus, many Florida employers have made telework arrangements with their employees.  On August 24, 2020 the DOL’s Wage and Hour Division (WHD) issued a new Field Assistance Bulletin 2020-5 to clarify an employer’s obligation to track the number of hours of compensable work performed by employees who are teleworking or otherwise working away from premises controlled by their employers.

Florida business owners should realize that, in a telework or remote work arrangement, the question of the employer’s obligation to track hours actually worked for which the employee was not scheduled may often arise. While the recent DOL Guidance responds directly to needs created by new telework or remote work arrangements that arose in response to the coronavirus, it also applies to other telework or remote work arrangements.

This new DOL Guidance reminds employers that they must pay employees for all hours worked, including work not requested but allowed and work performed at home. If the Florida employer knows or has reason to believe that an employee is performing work, the time must be counted as hours worked. Confusion over when an employer “has reason to believe that work is being performed,” may be exacerbated by the increasing frequency of telework and remote work arrangements since the DOLlast issued interpretive rules, nearly 60 years ago.

Read Field Assistance Bulletin 2020-5.

This DOL document states that the FLSA requires an employer to exercise its control and see that the work is not performed if it does not want it to be performed.  The employer bears the burden of preventing work when it is not desired, but merely creating a rule against such work is not enough.

Although employers are not required to “weed through non-payroll … records to determine whether or not its employees were working beyond their scheduled hours” the DOL document did note that in certain circumstances an employer may need to consult records outside its timekeeping procedure.  As a practical matter, if an employee regularly emails work to their supervisor after hours, the employer may be tasked with reviewing that employee’s emails to determine how prevalent work is being done outside normal working hours and making sure that employee is paid for that work.  

An employer’s obligation to compensate employees for hours worked can be based on actual knowledge or constructive knowledge of that work. For telework and remote work employees, the employer has actual knowledge of the employees’ regularly scheduled hours; it may also have actual knowledge of hours worked through employee reports or other notifications.

This DOL document states that one way an employer generally may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work is by establishing a reasonable process for an employee to report uncompensated work time. But the employer cannot implicitly or overtly discourage or impede accurate reporting, and the employer must compensate employees for all reported hours of work.

This recent DOL document is a good reminder for employers of remote workers to have both a policy and managers that, in practice, encourage employees to report uncompensated work time.