As many employees continue to work from home during the COVID-19 pandemic, on Monday the Department of Labor issued a field assistance bulletin reminding employers of their legal obligation to keep accurate records of all hours teleworked by employees. Under the Fair Labor Standards Act, employers may keep such records in any form or format. However, they must record all time worked, not just scheduled working hours.
Employers often contend that they should not be required to pay employees for time worked outside of regularly scheduled hours that was not specifically approved. The bulletin reminds employers that they must record and pay any time that they knew or should have known would be worked, even if the additional work was not specifically requested. This is sometimes called “suffering” the work to be performed.
DOL recommends that employers establish a means for teleworkers to report and record unscheduled hours. The employer may take corrective action against employees who work such unauthorized time, but they generally cannot refuse to pay them absent a clear disregard of specific instructions. If the employer establishes a reporting mechanism and the employee fails to report such additional working time, DOL does not expect the employer to audit emails or other records to determine if employees are underreporting working time.
DOL noted that as more employees work from home, the number of complaints and enforcement actions associated with telework is expected to increase.