The Wage and Hour Division of the U.S. Department of Labor recently issued Field Assistance Bulletin 2020-5 to address the obligations of employers under the Fair Labor Standards Act to keep track of time worked by employees who are working from remote locations.
If an employer knows or has reason to believe that work is being performed by an employee, the time must be counted as hours worked. An employer may have either actual or constructive knowledge that an employee is performing work outside of their regularly scheduled hours.
Actual knowledge of hours worked may come in in various forms, such as timestamps associated with employee-submitted reports or emails. An employer will be considered to have constructive knowledge of additional working time if it “should have acquired knowledge of such hours through reasonable diligence.”
The DOL’s guidance suggests that an employer may satisfy this reasonable diligence obligation by establishing a reasonable process for an employee to report uncompensated work time, not discouraging or impeding accurate reporting, and by compensating all reported hours worked.