August 24, 2020

DOL Issues Guidance for Tracking WFH Hours

In light of COVID-19, more employers are offering, and more employees are working remotely in work-from-home (WFH) arrangements. The U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (FAB) that gives DOL Field Investigators and others guidance for tracking hours worked by employees who WFH.  The DOL acknowledges, “In a telework or remote work arrangement, the question of the employer’s obligation to track hours actually worked for which the employee was not scheduled may often arise.” The FLSA regulations that address the employer’s obligation to track time were last updated in 1961. In 2019, the U.S. Bureau of Labor Statistics estimated that roughly 24% of working Americans performed some work at home on an average day. The DOL recognizes that percentage has increased in light of COVID-19.

Under the Fair Labor Standards Act (FLSA), an employer must track all hours worked by a non-exempt employee.  That obligation, however, is generally limited to tracking hours that the employer knew or reasonably should have known that the employee worked.  So, how is an employer to know if an employee is working nights or weekends in a WFH arrangement?

TIPS: The FAB gives some recommendations.

  1.  Provide a reasonable reporting procedure for nonscheduled time and then compensate employees for all reported hours of work, even hours not requested by the employer.
  2.  Do not prevent or discourage employees from accurately reporting unscheduled time that they worked.

: The DOL points out that the FAB applies not only to WFH but “other telework or remote work arrangements.” This would include employees who  work at a client’s location or a location other than the employers.