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Staying on Track: What Every Employer Should Know About Tracking a Remote Employee’s Time

The COVID-19 pandemic has ushered in a wave of new remote employees. With Oklahoma numbers on the rise, many employers are extending work hours from home. This shift in the way employers conduct business brings new challenges as they seek to comply with the Fair Labor Standards Act (FLSA) requirement to pay employees for all hours worked. To help, the Department of Labor released additional guidance for complying with regulations and reducing liability. Many Employers were surprised to learn that they may be required to pay non-exempt employees for work completed at home, even if the work was completed without the employers’ knowledge.

Fair Labor Standards Act and Paying Employees

The FLSA requires employers to pay non-exempt employees for all of the work they perform. These are employees typically paid hourly and who are eligible for overtime pay. Employers must pay for “work not requested but suffered or permitted.” Moreover, federal guidelines state that an employer must compensate these employees for work that the employer knows about or “has reason to believe” is being performed. This requirement stems from the idea that employers should control the work they want employees’ to complete and not complete. It is presumed that an employer knows about the work being completed during scheduled work times.

As an employer, it can be a practical challenge to identify the work you have reason to believe is being performed. Current law attempts to clarify this requirement by stating that an employer has reason to believe work is happening if the employer can discover this information through reasonable diligence. This clarification means that employers must exercise reasonable diligence to find out how much employees are working. To attempt to meet this reasonable diligence requirement, some employers have simply created an internal rule that remote employees are not allowed to work beyond the required hours. However, this alone will not be sufficient to alleviate the responsibility to exercise reasonable diligence.

Enforcing “a reasonable process for an employee to report uncompensated work time” provides an employer with an opportunity to gather information about additional work the employee is completing. This system is incredibly valuable, especially if employers now have remote employees and cannot monitor or control their time spent working as readily as before. An employer is not required to go beyond providing a method for reporting. If an employee chooses not to disclose additional hours worked, an employer will not be responsible for paying for those hours worked—unless the employer discouraged or prevented truthful reporting. Although employers are required to exercise reasonable diligence, they are not required “to undertake impractical efforts” like sifting through reports and documents to discover timestamps and other clues regarding an employee’s time spent doing additional work. If employers create and enforce proper reporting processes but employees choose not to comply, those employees are standing in the way of their own ability to receive compensation for the time they spent working.

Let Littleton Legal Help You
As we set new high numbers of COVID-19 cases in Oklahoma, many employees will likely continue to work remotely for the foreseeable future. We can help you identify and comply with federal and local regulations that apply to you and your workforce. Our experienced attorneys are ready to help you. Call today (918) 608-1836 to schedule a virtual consultation with our team.

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