No Summer Break for the Department of Labor: Tracking Hours Worked by Teleworking/Remote Employees; FFCRA Eligibility when Schools are Open; and DOL Guidance Documents
TRACKING HOURS WORKED BY TELEWORKING/REMOTE EMPLOYEES
On August 24, 2020, the Department of Labor (“DOL”) issued Field Assistance Bulletin (“FAB”) 2020-5, which provides guidance on an employer’s obligations under the Fair Labor Standards Act (“FLSA”) to track the number of hours worked by teleworking/remote employees.
The FAB explains that employers must pay for all work they know or have reason to believe is being performed by an employee, including unauthorized work or work performed at home. In determining whether an employer has actual or constructive knowledge of the hours worked by an employee, courts consider whether the employer exercised reasonable diligence in tracking the hours worked. Employers can satisfy their obligation to exercise reasonable diligence to track working time by having a reasonable procedure for reporting nonscheduled time and compensating employees for all reported hours worked, even if not pre-approved or authorized. Reporting procedures are not reasonable if an employer fails to provide proper training on the procedure, implicitly or overtly prevents or discourages employees from reporting all time worked or fails to pay for all the reported time.
For telework and remote work employees, employers may also have actual knowledge of hours worked through employee reports or other notifications, in addition to the employee’s work schedule. Employers, however, are not required to take impractical steps, such as sorting through records of an employee’s access of work-issued electronic devices outside of scheduled work hours, to identify unreported work if employees do not use the available reporting procedure and the employer is not otherwise notified of the additional work time.
Although this FAB is issued in response to the new work arrangements created by COVID-19, the FAB applies to all telework and remote work arrangements. In addition, the FLSA requires that an employer compensate an employee for all hours worked, regardless of whether the employee works remotely or in-person at a worksite, when the employer has actual or constructive knowledge of the hours worked even if the work is not authorized. This FAB does not prevent an employer from disciplining an employee who violates the employer’s off-the-clock or overtime policies.
ELIGIBILITY FOR FFCRA LEAVE WHEN SCHOOLS ARE OPEN
In anticipation of schools reopening, the DOL has also updated its guidance on the Families First Coronavirus Response Act (“FFCRA”). Specifically, the DOL has confirmed that an employee is not eligible for leave under the FFCRA, when the child’s school is open, but the employee has chosen to have to have the child participate in a remote learning program. An employee may be eligible for FFCRA leave when the school is “closed” to the child, such as when the school is operating on a hybrid-attendance basis or when the child is under a quarantine order.
APPROPRIATE AND TRANSPARENT GUIDANCE BY THE DOL
On August 21, 2020, the DOL announced the publication of its Promoting Regulatory Openness through Good Guidance Rule (“PRO Good Guidance Rule”), which implements Executive Order 13891. Per the announcement, the PRO Good Guidance Rule allows the DOL to continue to use guidance for lawful purposes, but ensures that guidance documents cannot be used in an unfair or unlawful manner”.
The PRO Good Guidance Rule requires that the DOL use guidance appropriately, transparently, and in a manner that is accessible to the public by 1) providing that, for significant guidance involving impacts greater than $100 million, the DOL will provide for notice-and-comment review of the guidance; 2) requiring all DOL guidance to be made available to the public; 3) allowing the public to petition the DOL on issues related to its guidance; and 4) limiting the DOL’s use of guidance to avoid potentially unfair conduct.
As part of the Executive Order, the DOL also completed a comprehensive review of its guidance and rescinded approximately 3,200 guidance documents. The remaining guidance documents can now be found in a single, searchable website at www.dol.gov/guidance. As the DOL explained, guidance should provide clarity about existing rights and obligations and help stakeholders comply with laws and regulations, but not be used to create new obligations or modify the law.
Like many things in 2020, we are going virtual! In place of our annual Best Employment Practices seminar, we will be hosting a series of webinars to keep our clients updated on current developments in labor and employment law. Stay tuned for additional details. If you would like to receive our future seminar announcements, please email firstname.lastname@example.org with your contact information.
We also encourage you to visit our blog at www.shieldingemployers.com. There, you will have easy access to important updates on COVID-19 and other labor and employment law topics.
THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE. LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.