How to keep up with nonexempt teleworkers' time

October 2020 employment law letter

Authors:

Albert L. Vreeland, Lehr Middlebrooks Vreeland & Thompson, P.C.

For many employers, the telework experiment necessitated by COVID-19 has been a surprising success. Many are considering whether to continue the work-from-home option for at least a portion of the workforce. One lingering concern, however, is how best to track time for nonexempt workers who are away from the physical workplace.

New DOL guidance

Under the Fair Labor Standards Act (FLSA), you're obligated to pay nonexempt employees for all time worked even if you never requested it or specifically prohibited it (such as a no-overtime rule). If the employee doesn't report the time (e.g., with a timecard) but you have "reason to know" about the work, you must still pay for it.

The U.S. Department of Labor (DOL) recently issued a field assistance bulletin (guidance for its enforcement investigators) setting out its position on teleworking employees' unreported time. An employer must pay if it has actual or constructive knowledge of the time:

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