Hopefully, you know by now that you should be tracking the time of non-exempt employees working remotely during this pandemic. If this is news to you, well…
But, have you figured out an excellent way to track hours that an employee works, even though s/he isn’t scheduled to work those hours?
The U.S. Department of Labor has your back with this new Field Assitance Bulletin issued yesterday. Let’s see if I can give it the “Plain English” treatment.
Let’s start with the fundamental premise.
An employer must pay its employees for all hours worked, including work that:
- an employer does not request,
- an employee works remotely anyway, and
- the employer knows or has reason to believe that an employee performed.
A few ways to avoid having employees work unscheduled hours.
An employer can have a rule that requires employees to get permission before working unscheduled hours. If the employee violates that rule, the company can also discipline the worker. However, the employer must pay the employee for those hours worked.
But what if the employee works unscheduled work hours and the employer never learns about it? That’s like a tree falling in the forest when no one is around. But, while the employer can have rules against working off schedule, it cannot set up mechanisms that impede employees from reporting those hours worked.
Instead, the employer can set up a reasonable reporting procedure so that employees can record non-scheduled time worked — even the ones worked without permission — and get paid.
Wait a minute, Eric. Why would we want to do that?
Because when an employer has a reasonable way for employees to report unscheduled hours worked, and the employee fails to report those unscheduled hours worked, the employer need not bend over backward to determine what hours the employee worked. An employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours. But, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.
In this situation, the tree falling in the forest does not make a sound, and the employee doesn’t get paid.
So, let’s summarize:
- Have a good system to record hours worked.
- Educate your non-exempt employees about how to record hours worked.
- Implement a written policy that deters non-exempt workers from working unscheduled hours absent prior written permission from a supervisor or manager.
- Train managers on said policy. Also, make sure that managers and supervisors do not abuse the system by asking employees to work extra hours (e.g., even just checking emails and texts) unless they intend to pay them for it.