With telework arrangements expanding in response to the coronavirus pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) 2020-5 to clarify an employer’s obligation to track the number of hours of compensable work by employees who are teleworking or otherwise working away from premises controlled by their employers.
In a telework or remote work arrangement, the question of the employer’s obligation to track hours actually worked for which the employee was not scheduled may often arise. While the guidance issued responds directly to needs created by new telework or remote work arrangements that arose in response to COVID-19, it also applies to all telework or remote work arrangements.
Employees working more flexible schedules to accommodate the interruptions of life in a pandemic can prompt questions for employers. FAB 2020-5 reaffirms that an employer must pay its employees for all hours worked, including work not requested but allowed and work performed at home. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Confusion over when an employer “has reason to believe that work is being performed” may be exacerbated by the increasing frequency of telework and remote work arrangements since the Department last issued interpretive rules in 1961. These arrangements have expanded significantly in response to the COVID-19 pandemic. Accordingly, WHD believes that it is appropriate to clarify this issue.
WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the FLSA and job-protected leave under the FMLA at https://www.dol.gov/agencies/whd/pandemic. For AGC-provided resources on FFCRA and other coronavirus-related matters of significance to construction employers, visit AGC’s coronavirus website.
For more information, contact Claiborne Guy at claiborne.guy@agc.org or 703-837-5382.