Human Resources Consulting - Columbia SC

Tracking Compensable Hours for Work Done at Home

Recently, The Wage and Hour Division of the United States Department of Labor issued Field Assistance Bulletin (FAB) 2020-5. This FAB provides guidance regarding employer obligations under the Fair Labor Standards Act (FLSA) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, 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. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence.

One way an employer may exercise such diligence is by providing a reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee fails to report unscheduled hours worked through such a 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 FLSA generally requires employers to compensate their employees for all hours worked, including overtime hours. As the Department’s interpretive rules explain, “work not requested but suffered or permitted is work time” that must be compensated. This principle applies equally to work performed away from the employer’s worksite or premises, such as telework performed at the employee’s home. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” Employers are required to exercise control to ensure that work is not performed that they do not wish to be performed. The Bureau of Labor Statistics estimated in 2019 that roughly 24 percent of working Americans performed some work at home on an average day. And these arrangements have expanded even further in 2020 in response to the COVID-19 pandemic.

The FLSA requires an employer to “exercise its control and see that the work is not performed if it does not want it to be performed.” The employer bears the burden of preventing work when it is not desired, and “the mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” Work that an employer did not request but nonetheless “suffered or permitted” is therefore compensable “Employers must, as a result, pay for all work they know about, even if they did not ask for the work, even if they did not want the work.”

A company’s best defense against the potential expense and aggravation related to federal or state law violations is to proactively review and revise as needed all Human Resources policies, handbooks, hiring procedures, compensation, benefits, training programs, communications tools and other functions. The professionals of PHHR are ready to assist your organization with this type of training as well as to maintain compliance with the latest state and federal mandates.

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Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.

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Paul Hilton, Human Resources Consulting, LLC
Columbia, South Carolina
Office: (803) 481-9533
Cell: (803) 305-8962 

Paul Hilton, Human Resources Consulting, LLC