With 31% (or more) of American workers working from home as of April 2020, according to a survey cited by the Bureau of Labor Statistics, and probably even more since then, most employers face important questions: what is the obligation to keep track of employees’ active work time and pay them for it? On August 24, 2020, the United States Department of Labor (DOL) issued a “field assistance bulletin” to assist employers in understanding their obligations to monitor employees’ hours, and pay them for all hours worked.
The DOL is the federal agency that enforces the federal Fair Labor Standards Act (FLSA). The FLSA (and California state law) requires that employers pay employees for all hours worked, including overtime. This includes work that is not pre-authorized: “Work not requested but suffered or permitted is work time” and must be paid. (29 C.F.R. § 785.11; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.)
This concept applies equally to telework performed at the employee’s home. (Id. § 785.12.) “If the employer knows or has reason to believe that the work is being performed, [the employer] must count the time as hours worked.” (Id.)
Employees who are properly classified as exempt from the FLSA (and California’s Industrial Wage Orders) are paid on a salary basis, regardless of the number of hours or work schedule. But, employees who do not meet all of the criteria for an exemption (job duties, hourly rate, and basis of pay) must be paid for every hour worked, including overtime.
The DOL’s interpretive rules state that “[e]mployers are required to exercise control to ensure that work is not performed that they do not wish to be performed.” (Id. § 785.13.) For example, a manager who schedules weekly conference calls with telecommuting employees (especially those in other time zones) should be mindful of the employees’ work hours. Employees’ participation in conference calls outside of work hours is implicitly authorized, and if employees do not report the time spent on these calls, the employer has constructive knowledge of, and must compensate, overtime work.
The law does not require an employer to pay for work “it did not know about, and had no reason to know about.” (Kellar v. Summit Seating Inc., 664 F.3d 169, 177 (7th Cir. 2011) (emphasis added).) In the language of the statute, the employer could not have “suffered or permitted” work it did not know and had no reason to believe was being performed. (See 29 C.F.R. §§ 785.11–.12.) An employer is not obligated to police employees, and when employees are clocked out, this creates a presumption they are doing no work – but the presumption can be rebutted by evidence that the employer knew or should have known work was being performed. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1040, 1051.)
In sum, failing to pay for unreported work that the employer did not authorize and has no way of knowing was being done would not violate the law, but if an employer knows about the work, even if they didn’t ask for it to be done, they must pay for the work.
Violations of the FLSA and state wage orders can result in civil penalties, statutory penalties, and attorneys’ fees and costs. To avoid liability for wage and hour violations, employers must use reasonable diligence to determine when work is being performed, and take reasonable measures to prevent unwanted work.
When does an employer have “reason to believe” work is being performed?
An employer must pay for work if it has actual or “constructive” knowledge that work is being performed. The DOL makes clear that it is not enough to merely have a policy prohibiting unauthorized work.
For example, if a supervisor emails an employee after hours and the employee responds after hours, the employer has actual knowledge of work being performed.
Likewise, if a project is assigned by a supervisor at the end of a workday, does not set a clear expectation that the employee should wait until the next workday to perform the task, and the project is turned in before the start of the next shift, the employer would have constructive knowledge of the employee’s after-hours work – and would be obligated to confirm that the employee properly logged their after-hours work time.
In this era of remote access, it is theoretically possible for employers to use tracking software on employer devices, monitor remote login times, review phone or data use records, etc., and then cross reference those times to employees’ time sheets. While those tools could be helpful in situations where the employer otherwise has reason to believe an employee performed after-hours work that did not get reported, the DOL makes clear that the onerous burden of sorting through all of this data for every employee every work day, and comparing it to timesheets, is not required.
How can an employer manage this obligation from a practical perspective?
An employer may satisfy its “reasonable diligence” obligation to acquire knowledge regarding employees’ unscheduled hours of work, by establishing a reasonable process for an employee to report unpaid work time.
Creating a reasonable reporting system – and making sure employees are not discouraged or prevented from using the system – has been found to satisfy this obligation. For example, employers’ timekeeping software should allow employees to enter their actual work time (not just a pre-set scheduled start and end time).
Today’s timekeeping software may have features to allow employees to clock in and out multiple times per day, or to allow an employee to go back in and correct a time entry even if it is outside of the scheduled shift time, and/or to sign off on a verification when a timesheet is submitted at the end of a pay period. Or, employers may provide employees with a form to submit time sheet corrections, or have a written policy that encourages employees to review their timesheets and email their supervisor and payroll to submit any corrections each pay period.
In addition, employers may have the ability to limit nonexempt employees’ after-hours access to company software.
How does an employer prevent employees from working more hours than authorized?
Employers should have a written policy that requires employees to accurately record all hours worked, stating that they should seek approval for working overtime, and forbidding unauthorized overtime or work outside of scheduled hours (including emailing, texting, and using work instant messaging software). The policy should state the consequences: violators will be paid for the hours they worked, but can be disciplined, and even fired, for violating the policy. Swift and consistent enforcement of these policies should quickly curb repeat violations.
But, even with such a policy, employers should train supervisors to ensure that they do not discourage employees from recording all hours worked or encourage them to work off the clock.
If you have questions about best practices or California or federal wage and hour laws, please contact your Weintraub labor and employment attorney.