On August 24th, 2020, the U.S. Department of Labor released Field Assistance Bulletin No. 2020-5 to address employers’ obligation under the Fair Labor Standards Act (FLSA) to track teleworking employees and compensable work hours.
Although the guidance is specific to the COVID-19 pandemic, it also applies to other telework or remote arrangements and states that an employer is obligated to pay their employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.
In addition, an employer’s obligation to compensate employees for hours worked can be based on their actual or constructive knowledge of that work. For example, with telework and remote work employees, an employer:
- Has actual knowledge of the employees’ regularly scheduled hours; and
- May have actual knowledge of hours worked through employee reports or other notifications
Regarding overtime, an employer may establish constructive knowledge of their employees’ unscheduled hours by exercising reasonable diligence and establishing a procedure for employees to report their extra time. If an employee fails to report unscheduled hours and does not follow such procedure, generally the employer is not required to investigate to uncover unreported hours. However, if the employer is notified through the proper process, or if employees are not properly instructed on using a reporting system, then an employer may be liable for those hours worked.Back to Insights