Tracking Work Hours of Remote Employees

The U.S. Department of Labor (DOL) recently issued guidance on tracking work hours for remote employees. The DOL acknowledged the standing rule that an employer is required to pay its employees for all hours worked, including work not requested by the employer to be performed, and including work performed at home. If the employer “knows or has reason to believe” that work is being performed, the time must be counted as hours worked.

The DOL also noted that an employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees that they should have known about through reasonable diligence. One way to fulfill an employer’s duty is to provide employees with a “reasonable [time] reporting procedure.” The DOL notes that while employers are not required to engage in “impractical efforts” to discover unreported hours, employers cannot prevent or discourage an employee from accurately reporting time worked.

The employer bears the burden of preventing work when it is not desired. The DOL stated that merely having a policy against unauthorized work is not sufficient; the employer must also make every effort to enforce the policy. However, the DOL noted that the FLSA does not require employers to pay for work they “did not know about, and had no reason to know about.”

Employers should keep in mind that the guidance discussed in the Field Assistance Bulletin merely advises how the DOL will interpret an issue. Employers should still follow applicable laws, including state laws that may have more strict time recording requirements.

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