Managing Off-The-Clock Time During the Pandemic

Nilan Johnson Lewis PA
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Ensuring that hourly employees accurately record their work time—and that employees are paid for all work time—can be a challenge even under the best of circumstances. But it’s crucial to avoid or defend costly class litigation or audits from the Department of Labor. Despite an employer’s best efforts and for a variety of reasons, employees may perform work without punching in or continue to work after their shift; work through meal or rest breaks; or respond to work emails in the evening or during the weekend—all of which can be compensable time.

These “off the clock” issues may be exacerbated for employers who now have hourly employees working remotely during the pandemic. Remote work means employers have less oversight and ability to enforce timekeeping rules. This is made even more complicated because employees may be working—and responding to work requests—during odd hours as they navigate other home obligations.

By taking the following steps while hourly employees are working remotely, employers can safeguard against off-the-clock violations.

  • Remote Work Policy: Make sure your remote work policy is up to date, or implement a remote work policy if you do not have one. The policy should emphasize employee responsibility for accurate timekeeping, including specific provisions on tracking pre- and post-shift work as compensable time and reporting time worked through meal or rest breaks. The policy should also state that employee failure to record time accurately may result in counseling, additional training, and/or discipline.
  • Train Management: Management should understand the importance of accurate employee timekeeping and receive training on how to encourage and aid employees in recording time. Employers should also train managers on remote work issues, including how emailing and texting employees post-shift creates off-the-clock problems.
  • Time Certifications: Require employees to certify, in writing, that they have accurately reported and entered all time worked each week. Employers should retain the certification document, whether paper or electronic.
  • Work Approval: Either as part of a remote work policy or as a stand-alone policy, employees should be required to obtain pre-approval of all unscheduled work, such as starting work early, working off-schedule, or working overtime. The policy should also provide that counseling, training, or discipline may result if such work is performed without prior authorization.
  • Pay, Then Discipline: If any employee performs unauthorized off-the-clock work or overtime, the only viable practice is to pay the employee for the time worked and then discipline the employee consistent with company policy for unauthorized work or inaccurate timekeeping.

These steps will not only mitigate current off-the-clock risks, but they will also be invaluable in defending against any investigations or lawsuits related to the same. Class action lawsuits are already being filed over various Coronavirus issues, and off-the-clock claims are particularly well-suited for class and collective lawsuits. By following these measures, employers will be able to document the steps taken to record employee time accurately and to make sure employees are fully paid for time worked.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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