Tuesday, August 25, 2020

DOL Issues Telework Guidance – 1st Time in 59 Years

In recognition of the increase in teleworking since the onset of the pandemic, yesterday the Department of Labor issued new guidance on teleworking. The last teleworking guidance was issued by the Department in 1961.

In the guidance, the DOL attempted to address some uncertainties for employers in tracking hours and paying employees who telework. It reaffirmed that an employer is required to pay its employees for all hours worked, including work not requested but allowed and work performed at home; but acknowledges that “confusion over when an employer ‘has reason to believe that work is being performed,’ may be exacerbated by the increasing frequency of telework and remote work arrangements.”

The guidance notes that in addition to scheduled hours worked, an employer must pay an employee for unreported work time as long as the employer had “constructive knowledge of additional unscheduled hours worked.” That doesn’t seem all the helpful to employers who are struggling to pay their employees correctly. But, the DOL continued, noting that constructive knowledge is when an employer should have acquired the knowledge through ”reasonable diligence,” such as providing a reasonable reporting procedure for nonscheduled work and then compensating employees who report their work time, whether scheduled or not. If an employer has created a reasonable reporting procedure for unscheduled hours and an employee fails to report time worked, the guidance states that “the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours.” The guidance gives an example of “impractical efforts” as “sorting through… information to determine whether its employees worked hours beyond what they reported.” In summary, if an employer provides employees with a way to report unscheduled work time and the employee fails to do so, the employer will generally not be liable for the unpaid wages. Naturally, this general rule is probably not going to apply in instances where the employee does not report the time worked but the employer knew that the employee was working during their off-duty time. For instance, the employer cannot likely rely on a defense that it did not know about unscheduled work time when the employee makes the employer aware of that time worked in some other fashion, such as through email exchange or telephone calls with their supervisor, management, or HR.

The new guidance reiterates that employers have the ability to control their employees and their hours of work. Most employers maintain policies prohibiting unapproved work time or overtime. Employers always have the option of issuing corrective action when an employee violates that policy. Now employers are assured that if that time is not reported according to procedures in place by the employer, they will not be liable if the employee later makes a claim for unpaid wages or overtime.