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DOL Provides Guidance for Recording Time of Employees Working Remotely Due to COVID-19 (or for Any O DOL Provides Guidance for Recording Time of Employees Working Remotely Due to COVID-19 (or for Any O

DOL Provides Guidance for Recording Time of Employees Working Remotely Due to COVID-19 (or for Any Other Reason)

With many employees continuing to work from home, one question that often arises is how employers ensure their non-exempt employees (i.e., employees entitled to overtime pay) are recording their hours worked. No employer wants to be surprised by a claim that their employees were not paid for all hours they worked. Such claims can be costly, particularly if the reason employees were not paid is connected to an employer’s policy or practice and that policy or practice affects multiple employees. On August 24, 2020, the Department of Labor (DOL) issued guidance that outlines the expectations for tracking time and provides employers with a method of protecting themselves from claims.

COVID-19 has not changed the legal requirements for tracking time worked by non-exempt employees.  Employers are required to pay employees for all hours their employees worked, including work from home. If the employer “suffered or permitted” the employee to work, the time must be recorded and compensated. When an employee works on a set schedule, tracking time is fairly straightforward.  However, with employees working from home and managing other personal matters—such as children attending school virtually—they do not always work a set schedule. In that case, the employer often needs to rely upon the employees to report when they are working outside of their normal schedules.

The DOL notes that employers are not required to go to “extraordinary” or “impractical” measures to determine how much an employee worked, but needs to take some steps to ensure they are paying accurately. The DOL’s guidance describes a simple option that most employers follow—provide employees a reasonable reporting procedure for reporting non-scheduled time. According to the DOL, unless the employer prevents or discourages the reporting of time, if an employee fails to follow the reasonable reporting procedure, the employer is not obligated to investigate and uncover any unreported hours.

This guidance is not a change in the law—nor is it “law.” However, it does provide a reminder that in a remote workplace, including those resulting from COVID-19, employers are not required to read minds. As long as employees have a reasonable means of reporting hours worked outside of their normal schedules, an employer can rely upon what an employee reported (or did not report). This does not give employers permission to ignore hours they know the employee worked without reporting them, but does allow employers to place some of the responsibility on remote employees to properly record their time.

If you need any assistance, please contact Tami Earnhart or any other member of our Labor, Employment & Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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