In 2020, employers are continually facing the need to adapt to a new “normal” of their workforces working from home. As the work from home situation continues to evolve, the guidelines and policies given to employers regarding compliance with compensation requirements are also changing.
As articulated by Kat Lee Colgan in Tyson & Mendes’ June 2020 Employment Newsletter, employers are encouraged to implement policies which safeguard their abilities to track employees’ ability to capture correct compensation and expenses.
A new bulletin from the United States Department of Labor provides further guidance to employers and the obligation to maintain reasonable diligence in tracking teleworking employees’ hours of work.
Clearly, documentation is key.
In the June 2020 Employment Newsletter, Tyson & Mendes partner Kat Lee Colgan outlined what considerations an employer must address in order to reimburse those business expenditures that can be considered “reasonable” within California Labor Code § 2802: “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer”. Ms. Colgan provided guidance on which “work from home expenses” are reasonable, and mentioned ways an employer can compensate employees, including a policy to have an employee submit individual expense reports in order to track the expenses.
Rest and Meal Break Tracking
Ms. Colgan also set forth the need for an employer to provide its specific work and meal break policies to verify all employees have the information readily available to them in writing to reference. Also discussed were either time tracking software on their systems or the implementation of policies requiring employee communication via e-mails at the beginning and end of the day, as well as emails at the beginning and end of all meal breaks.
Tracking Hours From a Longer Day
As set forth in the new bulletin, there is a recognition that employers will do well by tracking work hours that could be defined as “unscheduled.” As the pandemic continues to create remote work situations for several businesses that did not offer “telework” before, tracking long-term (and long day) scheduled and unscheduled hours is as important as tracking breaks and reasonable expenses.
The August 24, 2020 “Field Assistance Bulletin” from the United States Department of Labor/ Wage and Hour Division recognizes employers are required to pay employees for all hours worked, including work performed at home.
The bulletin provides guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers. 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. While this guidance responds directly to needs created by new telework or remote work arrangements which arose in response to COVID-19, it also applies to other telework or remote work arrangements.
The bulletin advocates for employers to track these hours. “[B]y providing a reasonable reporting procedure for nonscheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer,” an employer can track the hours; be alerted to possible overtime situations; and exhibit appropriate diligence in the oversight and compensation of an employee.
The reason for this reporting system is simple: if an employer knows or has reason to believe work is being performed, “the time must be counted as hours worked.” With telework regularly occurring, if an employer wants to curb the number of hours worked or compensate for the hours worked, reasonable diligence to obtain those hours will be accomplished through a reporting protocol.
The implementation of an hour tracking policy also provides safety to an employer. With such a protocol to capture hours is in place, there is a recognition that, conversely, 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 August bulletin is a furtherance of guidance provided in July 2020 by the Department of Labor, which also informed employers they can meet obligations to compensate a teleworking employee “by providing reasonable time-reporting procedures and compensating the employee for all reported hours.” The July 2020 mention of tracking protocols was further bolstered by the August 2020 bulletin.
Tracking policies and protocols will assist an employer which provides flexible hour schedules to employees which have other obligations during the COVID-19 emergency. A teleworking parent with distance learning constraints may agree with his or her employer to work a split shift, and tracking protocols allows for an accurate capture of the “work day.”
Obviously, the more information the employer provides to its employees, the better tracking occurs. This allows for better protection against subsequent claims of improper compensation, and better control over the desired hours from the employee.