OVERTIME AND REMOTE WORK
Remote work allows employees to work from home. It is growing in popularity. Employees often enjoy the flexibility and autonomy it provides. Employers have also begun to recognize benefits. Employers benefit because teleworking policies can diminish employee turnover, improve morale and save overhead costs associated with a large, traditional brick-and-mortar office.
But when employees work from home, it can be difficult to know how much that employee has worked and if that employee is owed overtime. Poor policies could trigger needless liability under the Fair Labor Standards Act (“FLSA”). Further, even if policies that are well-written, if those policies are poorly or inconsistently administered, there could be significant employer liability.
As a result, employers should consider whether it makes more sense to restrict teleworking policies to exempt employees who are paid on a salary basis or whether it makes sense to also allow such flexibility for non-exempt, hourly-paid employees who would be owed overtime for any hours worked more than 40 during the workweek.
If an employer decides that teleworking is allowed for hourly paid employees, employers should take several steps to limit liability under the FLSA.
First, employers should have an attorney prepare well-written timekeeping and overtime policies tailored to the business's specific needs. These policies should address the importance of accurately logging time, lunch breaks, etc. Employees should sign an acknowledgment form confirming that they understand the policies and agree to abide by them.
Second, employers should prepare travel policies that recognize the FLSA issues that could arise if that employee travels for work during the work day. This stems from the reality that while ordinary commute time before an employee begins their “principal activities” is often not compensable, an unintended consequence of teleworking is that if the employee travels to the regular office or another work location during the work day, that travel time may be compensable. This is often referred to as the “continuous workday doctrine.” Employers need to be prepared to address this common issue.
Third, employers must be willing to take disciplinary action if time recording and overtime policies are violated. In short, employers can become complicit and liable if they become aware (or should have been) of time-keeping issues. Employers need to take prompt, remedial action to protect from liability.
