Remote work and the FLSA: DOL issues new Guidance

Published On
September 28, 2023
Read Time
2.5 Minutes
OnBlick Inc

When the COVID-19 crisis made us witness our homes turn to workplaces, a few difficulties also came along. It is obvious that the employers have a tough time managing their workforce during remote work. There could be extension of the work hours. Thus, it becomes difficult to demarcate scheduled and unscheduled hours. You could be unsure about tracking the compensable work hours, right? Be assured that the new guidance by DOL clears the air. Don’t want to take pains and read the bulletin? Here is a gist of it.

What’s FAB No.2020-5 all about?

The Field Assistance Bulletin (FAB No.2020-5) released by the U.S. Department of Labor’s Wage and Hour Division on August 24, 2020 guides employers to stay compliant with the Fair Labor Standards Act (FLSA) during remote work. The FLSA requires the employers to pay their employees for all hours the latter are “suffered or permitted” to work.  In other words, the employees are eligible for compensation not just for their scheduled hours, but also for the time spent working outside their schedule. 

Besides this, the FLSA clearly states that an employer should exercise control and see that unwanted work is not performed.And, the employer bears the burden of preventing work when it is not desired.The guidance cautions you to exercise ‘reasonable diligence’ when you have to keep track of your employees’ teleworking hours.

How to exercise ‘reasonable diligence’ during remote work?

According to this bulletin, one way an employer can exercise reasonable diligence to know employees’ unscheduled hours of work is “by establishing a reasonable process for an employee to report uncompensated work time.” A process that enables your employees to accurately report work hours would serve the purpose.

For instance, an employee fails to report his or her time through the established process. What would you do in such a scenario? The DOL’s 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.”  Hence, you need not cross-check the employees’ phone records or electronic records to find out the unreported work hours.

Points to remember

The guidance doesn’t intend to say ‘that consultation of records outside of the employer’s timekeeping procedure may never be relevant’. However, the DOL also warns that an employer can’t prevent or discourage an employee from accurately reporting his or her work time.

To summarize, the guidance emphasizes your obligation to make fair and proper efforts to see to it that your employees are appropriately compensated for the off-the-clock work performed. You can breathe a sigh of relief since the failure to compensate the employee for unreported work hours does not violate the FLSA.

Bonus tip: You can consider using a workforce management software to make remote work easier.


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