Telecommuting (also known as working from home), was introduced back in the 1970’s and as technology has advanced, it has steadily expanded. Today, the large number of Americans working from home due to COVID-19 has allowed many businesses to continue operations during this challenging time. However, many of these same businesses weren’t prepared to manage employees working from home, especially non-exempt employees.
The Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid for all hours worked, including hours that are not authorized. If the employer knows or has reason to believe that an employee is working, the hours must be compensated. This has always presented a challenge when a worker is away from a company location where their working hours could otherwise be monitored. A new Field Assistance Bulletin provided by the DOL, states that an employer can protect themselves by providing a reporting procedure for hours worked outside of the normal work schedule. The DOL continues that when an employee does not use the provided reasonable reporting system to alert an employer to unscheduled hours of work, the employer is unable to prevent the unwanted work. The guidance goes on to explain that it’s not the employer’s responsibility to go so far as auditing IT records to discover if the employee is working outside of reported hours. This guidance alleviates a major concern for employers with employees who work offsite and may later argue that they performed work “off the clock.”
As always, if the employer is aware of such hours, they must compensate the employee. As an example, if a supervisor receives a report late at night from a telecommuting employee, they may have constructive knowledge that work was performed and should inquire about the employee’s hours. It should always be stressed to the employee that they must accurately report their hours worked.
To manage expenses and control overtime, employers should prevent unauthorized overtime by making it clear to non-exempt employees that they are not allowed to work outside of their scheduled hours unless they receive prior approval. This type of policy should be found in the employee handbook. Even where work is unauthorized, it must be paid, but violations can be managed as a disciplinary issue, up to and including termination.
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