In the age of COVID-19, many employers are allowing employees to work-from-home — also known as telework. And, employers are required to pay hourly workers for all work they perform — whether at home or a specific job site. Moreover, employers also have to pay for work they didn’t request — unscheduled work. But, how is an employer supposed to know exactly how much unscheduled work was performed from home? On August 24, 2020, the United States Department of Labor’s Wage & Hour Division (“WHD”) issued guidance on that issue. The guidance (known as Field Assistance Bulletin 2020-5) can be found at this link: FAB 2020-5.
Bulletin 2020-5 focuses on the concept of “reasonable diligence.” Essentially, the bulletin says that employers should establish a system and use “reasonable diligence” to determine the amount of unscheduled work performed. But, the “reasonable diligence” standard also puts obligations on employees. Employees who fail to follow reasonable time reporting procedures may not be entitled to be paid under the terms of the Fair Labor Standards Act.
As with almost all legal issues, the devil is in the details of each situation. Employer’s can’t “bury their head in the sand” and ignore unscheduled work. They also can’t implicitly or overtly discourage or impede accurate time reporting. For example, employers shouldn’t tell employees: “Don’t write down any work that you performed after 5:00.” At the same time, employees can’t ignore well-published time keeping requirements and then complain about not being paid for unscheduled, unreported work.
So, how can employers engage in “reasonable diligence”? Here are some basic steps:
- Employers should create a simple time-keeping policy that requires all hourly employees to document all scheduled or unscheduled work.
- Any time keeping policy should have a disciplinary component. Employers have to pay for unscheduled, and even unauthorized work. But, in most circumstances, an employer can impose discipline if the time keeping policy is violated. IMPORTANTLY: NEVER WITHHOLD PAY WITHOUT CONSULTING A LAWYER.
- Employers should do more than just adopt a policy. They should educate hourly employers and their supervisors on the requirements of the policy. This can be done with e-mails, memoranda and/or employee meetings. Employers should keep any available documentation to prove that the time keeping policy was effectively disseminated.
Obviously, WHD’s guidance is aimed at ensuring that hourly employees are properly paid when they work from home. Yet, the WHD guidance also dovetails nicely with the IRS’s guidance requiring employers to keep adequate documentation to support any award of paid leave under the Families First Coronavirus Response Act. Here’s a link to a blog post that I wrote discussing the IRS’s requirements for documentation of telework: IRS Documentation Requirements.