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DOL Issues Guidance on Time Tracking for Remote Workers

On August 24, 2020, the US Department of Labor (DOL) issued Field Assistance Bulletin No. 2020-5 addressing employer obligations for tracking time worked by remote workforces.

The guidance is timely, given the transition of many employees to remote or teleworker status in light of COVID-19, but the DOL makes clear that the guidance is intended to outlast the pandemic. The advice is directed at tracking time for remote employees who are non-exempt, as most exempt employees are paid on a salary basis.

The guidance notes in particular that employers are obligated to pay for all hours worked, including work not requested but suffered or permitted, so long as the employer knows or has reason to believe that work is being performed. Such knowledge may be actual or constructive and an employer must exercise reasonable diligence in acquiring the knowledge. This principle applies both to work performed in the workplace and work performed at home.

One way an employer may exercise reasonable diligence in tracking unscheduled time worked at home is by providing a reasonable reporting procedure for non-scheduled time. The DOL guidance makes clear that if an employee does not report their time through the established procedure, it is not the employer’s obligation to further investigate and uncover additional hours worked. However, an employer may not prevent or discourage an employee from using the procedure.

In addition to establishing a reporting procedure, employers should provide notice to employees of any policy against working unauthorized overtime. Note, however, that just having such a policy in place is not enough. It is the employer’s obligation to monitor and enforce the rule. Moreover, even if an employee performs work in violation of such a policy, the employer must still compensate them for that time worked.

In today’s increasingly remote work environment, tracking time worked can be a challenge for employers. The DOL guidance provides a framework for compliance. Employers should clearly communicate policies around unauthorized hours worked, set up a procedure by which employees can report their additional hours, and compensate employees for their hours worked, regardless of whether they were authorized.

A copy of the full Field Assistance Bulletin can be found here.

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