More USDOL Guidance On Virus Working Time Issues: Tracking Off-The-Clock Time

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I have written several times about employees working from home, e.g. telecommuting, and how employers must carefully keep track of their hours to avoid unauthorized overtime.  There are situations, however, that arise regarding unanticipated work and how employers should track and pay for this.  The USDOL has now assisted in this endeavor, as it issued guidance for the tracking of unscheduled work hours.  The agency has done this through the vehicle of publishing a Field Assistance Bulletin to agency field personnel.

The thrust of the advice is that employers must allow employees report work they performed but which was not originally scheduled.  The Wage Hour Administrator offered the following observation on this reporting procedure by asserting that “if an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours.”  The obligation of the employer is to pay for unscheduled time when the employer knows the time was worked.  The employer may have access to records showing (possibly) that the worker was doing work outside of scheduled hours, such as data showing when company issued computers or electronic devices were logged onto or utilized.

The Administrator made clear that although this guidance dealt with the issues raised by the new teleworking environment businesses find themselves in, it also applies to other kinds of telework or working remotely arrangements.  She noted that “due to the coronavirus pandemic, more Americans are teleworking and working variable schedules than ever before to balance their jobs with a myriad of family obligations, such as remote learning for their children and many others.   Today’s guidance is one more tool the Wage and Hour Division is putting forward to ensure that workers are paid all the wages they have earned, and that employers have all the tools they need as they navigate what may, for many, be uncharted waters of managing remote workers.”

One commentator has suggested that employers be aware that such claims may arise and that employers need to develop protocols that prevent these claims from arising in the first place.  She noted that employers need to develop a mechanism by which employees can report this off-the-clock work and seek approval for its payment.  This has two salutary benefits; the first is that employees get paid for bona fide work they did and, secondly, of equal importance, it provides employers with a built-in defense in case outrageous (or inflated) claims of work hours are made.

The Takeaway

Employers must be proactive and come up with a procedure to track this unscheduled time.  This could be a real landmine for unwary employers.  I am all about closing loopholes that employees try to climb through in efforts to sue their employers for allegedly unpaid wages.  The employer must also issue a policy forbidding unauthorized overtime, just to be on record with that.

An ounce of prevention is worth thousands of dollars in liability…

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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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