In response to the increase in pandemic-generated remote work, the DOL has issued a Field Assistance Bulletin (No. 2020-5) that offers guidance (applicable to both COVID and non-COVID telework arrangements) on how businesses should manage pay for such work.
The guidance emphasizes that remote workers must be paid for all work that an employer knows or “has reason to believe” was performed, and applies a “reasonable diligence” standard to determine whether pay is due for work that an employer had reason to believe was performed.
According to the DOL, businesses can show reasonable diligence by developing a system for employees to report work of “unscheduled hours.” If such a system is developed, the employer would then be responsible for payment of all time reported via the system, and could not discourage employees from accurately reporting time. To the extent an employee fails to report work though the system, an employer will not generally be required to investigate further to uncover unreported hours. Moreover, reasonable diligence does not require an employer to “undertake impractical efforts such as sorting through [records that show employee access of employer issued devices] to determine whether an employee has worked hours beyond what was reported.”
While this is helpful guidance for how businesses can reduce risk of liability for telework wage and hour disputes, employers should not interpret it to mean that employees who work remotely must be given free rein to decide when and how much to work. Clear communication about expectations for scheduled work, and a policy that requires all employees to get express authorization prior to engaging in unscheduled work, are important to ensure that employers maintain control over employee hours and do not end with obligation to pay for unauthorized time.