As we have previously discussed, employees who make less than $684 per week and perform white-collar work must be paid for all authorized time they spend performing duties in the scope of their employment. This has always presented a challenge to employers, as what constitutes authorized time can sometimes be unclear. Courts have generally found that it includes all time that the employee spent performing job duties that the employer knew or should have known about.
Tracking authorized time can be more difficult when employees work from home. To deal with this we have encouraged employers to develop remote timekeeping policies to keep track of employee time spent working from home. Ideally, this would include an electronic system that employees can log into at the start of their day and log out of at the end of it and that would have clear rules on work that can be performed outside of this time period.
The DOL guidance underscores the importance of employers being diligent about ensuring that their employees are not performing off-the-clock work. Once an employer learns that an employee is performing off-the-clock work it is the employer’s obligation to stop this.
If an employer knows that an employee is performing work after hours and does nothing to stop the employee from performing that work, the employer will likely be required to pay the employee for this work. Once the employer becomes aware of off-the-clock work, it bears the burden of proving that it told the employee that such work was not permitted. If it cannot meet this burden then it will be responsible for paying the employee for this work.
Without a remote timekeeping policy in place, this becomes much more difficult. Employers need to make it clear when an employee’s day starts and ends and the consequences for working outside of that period.
Feel free to contact us by email at mdicianni@ancelglink.com or by phone at (312) 604-9125 if you have questions about remote timekeeping policies or would like help drafting one.
