Do you have to pay remote, non-exempt employees for work time you didn’t know about?

Jeremy V. Farrell, Esq., jfarrell@tuckerlaw.com, (412) 594-3938

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.

General Rule

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? 

Fair Labor Standards Act

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?

Department of Labor Guidance

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:

1. Adopt a timekeeping policy in your handbook that (a) explicitly directs employees to accurately record all hours worked (including all time worked at home or away from the company’s premises), (b) prohibits them from performing any work without recording their time, and (c) bans them from working outside their scheduled hours without written permission from their boss or human resources.  
2. Create a reasonable, easy-to-use process for employees to report all their work time, including unscheduled, remote, unpermitted, or off-the-clock work time. Include that process in your policy. 
3. Pay the employees for all time so reported. 
4. Make your non-exempt employees and managers aware of this policy. Periodic signed acknowledgements are useful.   
5. Consider counseling or disciplining employees who violate the policy, but don’t forget #3. You still have to pay them for the work. 

For more information about labor & employment, contact Jeremy Farrell at (412) 594-3938 or click here for more information about Jeremy.