DOL releases guidance on tracking remote employee hours

The growth in employees working remotely since COVID has created some timekeeping concerns.

With one in four U.S. workers working entirely from home since the pandemic, according to Gallup, tracking normal workday hours can become more complicated for some employers as nonexempt employees work from home and may have home and child care demands that disrupt or extend the normal eight-hour workday.

To help clarify employer responsibility as it relates to tracking teleworking employee hours, the U.S. Department of Labor released guidance that highlights an employer’s responsibility to compensate hours worked whether the work was requested or approved by the employer.

"The lines between work and home were blurry before, but now it’s just nonexistent," says John Diviney, a partner in the employment and labor practice at Rivkin Radler LLP in Uniondale.

This has in turn created time-tracking difficulties, he says. The guidance serves as a "reminder of the basic obligation and guidance employers have with respect to recording work time in the context of remote work," Diviney says. The guidance makes clear that an employer is required to pay its employees for all hours worked, "including work not requested but suffered or permitted," he says.

If the employer knows or has reason to believe that work’s being performed, the time must be counted as hours worked, Diviney says. The guidance stresses the importance of having a "reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work." Further, "if an employee fails to report unscheduled hours worked through such a procedure, 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 states.

Courts in a wage-and-hour dispute will consider if the employer had knowledge of the unscheduled work through "reasonable diligence," such as work-related email correspondence after the employee’s normal hours, says Keith Gutstein, comanaging partner of the Woodbury office of Kaufman Dolowich & Voluck LLP.

That’s why it’s critical having a system where time can be tracked accurately be it by calling in, logging in or even email submission of records, he says, noting in absence of records, the burden continues to be on employers to challenge hours claimed to have been worked by employees.

It may even pay to implement a flexible telework arrangement if they have to work unconventional hours, Gutstein says. But if you do, he recommends putting it in writing, specifying the hours they plan to work outside of their normal schedule.

With any schedule, employers should also be accounting for the NYS required daily 30-minute meal break, says Barbara DeMatteo, director of HR consulting at Jericho-based Portnoy, Messinger, Pearl & Associates, Inc. Typically it’s unpaid, but that’s up to the employer’s policy, she says.

And of course if a nonexempt employee works over 40 hours in any week, an employer must pay that employee overtime, at time and a half of their regular pay rate (i.e.1.5 times their regular hourly pay), she says.

The employer can try to restrict unapproved overtime by issuing policies stating they must get preapproval, DeMatteo says.

If employees keep working unapproved hours, first have a conversation to discuss what they’re doing and why it’s creating all this additional time they need to work, she says.

Remind them of your policy, says Susan Accardo, a partner at Accu Data Workforce Solutions in Hicksville, a payroll outsourcing and human capital management solutions provider.

She suggests any employee who telecommutes sign an agreement stating they’ve read and understand the policy and acknowledge any violations of the policy may result in disciplinary action.

If the unauthorized work hours become consistent, you can pursue corrective action as you would with any other policy violation, she says.

Accu Data offers clients a web-based time and attendance program allowing employers the ability to track employee start and stop times, but also meals, breaks, overtime, comp time and other paid time-off benefits, says Accardo, noting the firm’s seen a a 12% increase in employer’s implementing its system since the onset of COVID.

Keep in mind if you don't want to trigger overtime pay, let managers know to avoid asking nonexempt employees questions or queries outside of their normal working hours.

"It’s the two-minute text here and three-minute text there and four-minute email here and it adds up," DeMatteo says.

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