Peter J. Halesey, Esq., Campbell Durrant, P.C. | April 2023
As part of the remote work trend, questions have arisen as to the responsibilities of employers in providing certain benefits (e.g., Family and Medical Leave Act benefits) to their employees. Entitlement to these benefits becomes murkier when the benefits are tied to work time making it critically important for employers to capture all work time, including remote time. Recently, in an attempt to provide guidance to employers, the United States Department of Labor issued a Field Assistance Bulletin outlining its position on several of these matters. While the Department’s Bulletins do not have the force of law, they do provide important insight as to the Department’s interpretation of its regulations and serve as roadmaps for engaging in best practices.
The Bulletin initially notes an employer’s responsibility to pay its employees for all hours worked, which includes all work performed away from the employer’s premises. Accordingly, this would cover work performed remotely in the employee’s home. Under the Department’s regulations, time worked can also include time spent on short breaks (defined as breaks of twenty minutes or less), under the theory that “such short breaks primarily benefit the employer by reducing employee fatigue and helping employees maintain focus and be more productive at work.” Employees are entitled to compensation for this time regardless of whether they are working in an office at the employer’s premises or if they are working remotely at home. Conversely, a break of more than twenty minutes in duration when the employee is completely relieved from duty does not constitute time worked. By way of example, an employee working remotely who steps away from their workspace to eat a meal but continues to take phone calls and respond to emails during that time would need to be compensated for that time. However, a remote employee who works from 7:00 AM to 8:00 AM, but steps away for an hour to perform personal household tasks before resuming work at 9:00 AM would not need to be compensated for that hour.
The Department’s Bulletin notes that employers must be vigilant in tracking time worked, as time must be compensated if the employer knows or has reason to know that work is being performed. In order to avoid compensation issues for non-exempt remote employees, an employer should implement a strict timekeeping system to monitor employee work activity and ensure that non-exempt employees working in a remote capacity are adhering to their schedules. Employers would need to determine what type of system best suits their needs based on factors such as the size of the workforce. Larger employers may wish to invest in computer software that the employee could utilize remotely to clock in and out of work. Smaller employers may be able to simply have their remote workers call, email, or even text their supervisor who could then note the time the employee began and concluded their work period.
If an employer notices that the remote, non-exempt employee is engaging in work activities such as answering phone calls or sending emails at times when they are not scheduled to work, the employer must take steps to have the employee cease working during scheduled break periods or after hours unless the employer is prepared and willing to pay overtime to the employee. Employers should maintain and enforce policies specifically outlining work schedules and break/meal periods for their remote employees and take enforcement action to guard against any deviation. Employers should also maintain policies and procedures requiring employees to document any significant disruptions to their workday (i.e. engaging in personal errands, dropping children off at school) so the employer can accurately track time worked.
In general, employers are permitted to dictate the availability of overtime work to their employees. Employers who notice employees violating overtime rules should immediately take disciplinary steps to correct the violations. Although the employee would have to be paid for performing the work, the employer would be within its rights to begin the disciplinary process and escalate the same if the employee continues to violate the employer’s overtime policies. Continued violations of the overtime policies could then be considered willful violations, potentially exposing the employee to greater levels of discipline.
Additional issues may arise in the area of compliance with the Family Medical Leave Act, particularly in tracking hours worked for eligibility purposes. Regardless of whether an employee works out of the employer’s premises or works remotely, eligible employees are permitted to exercise their rights under the FMLA after working 1,250 hours in a year-long period. An employee who is on intermittent FMLA leave must accurately track their hours worked as opposed to hours covered by FMLA leave. In addition, remote employees must accurately track hours worked in order to ensure that they have accrued enough hours before taking FMLA leave.
One additional point for employers to consider is the benefit of accurately tracking remote time worked in the unfortunate event that a remote employee suffers an injury. Accurately tracking the employee’s time can assist in successfully proving that an employee was not clocked in to work at the time of the claimed injury, which could be important to the defense of a claim.