It depends. Although, fortunately, there are guidelines to help employers handle this often-misunderstood scenario, which got even trickier with the expansion of remote work arrangements following the pandemic. After all, tracking someone’s work time when they are not physically present in the workplace presents a more challenging task than requiring employees to punch in and out from the company desktop in their office.
The general rule is that employers have to pay non-exempt employees for all “hours worked,” even work that wasn’t requested or was done off-site or after hours. “Hours worked” includes not just the work the employer actually knows about, but also work that it has reason to believe has been performed.
But the latter concept has always been somewhat amorphous. What sort of work should a company have “reason to believe” has been performed?
This obligation comes as a function of the FLSA’s (Fair Labor Standards Act) general requirement that employers exercise control to ensure that work is not performed if it does not want it to be performed. Given that, employers generally have to exercise reasonable diligence in learning about employees working unscheduled hours. But does that mean that someone from HR must, for example, comb through non-payroll records to see when an employee accessed the employer’s network or used their work email outside the scheduled workday?
While these are often fact-intensive scenarios, guidance issued by the Department of Labor during the pandemic provides some best practices for employers to follow:
August 31, 2023
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