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
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.
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.
|For assistance with any Human Resources related questions or other
issues, please Contact Us.
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