Employers must use reasonable diligence in tracking nonexempt telecommuters’ work hours and may do this by providing a reporting procedure for unscheduled time, the Department of Labor (DOL) stated in Aug. 24 guidance. The workers then must be compensated for all reported work hours, even those not requested by the employer.
Rather than sifting through information-technology (IT) records to investigate whether employees are actually working, employers can rely on time-keeping procedures and employees’ obligation to accurately report time.
Reporting procedure is key
In its guidance, the DOL stated that if an employee fails to report unscheduled hours worked through the employer’s reporting procedure, “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.”
The employer is required to pay employees for all hours worked. “If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked,” the DOL said.
Employers may still have to do some digging
In some cases, though, consultation of records outside the employer’s time-keeping procedure can sometimes be relevant. Depending on the circumstances, it could be practical for the employer to consult such records.
Employers should still, of course, check records when they have reason to believe that work is being performed but not reported. For example, if a supervisor receives communications outside of scheduled hours and the hours are not reported, the employer should investigate. Willful ignorance is no excuse.
Prevent off-the-clock work
Employers should be made clear to non-exempt employees that they should not work outside of their normal working hours unless they have received prior approval. Employers should have policies that prohibit working off-the-clock. Failure to comply could result in discipline.