Accurately Compensating Nonexempt Hourly Employees Working from Home: U.S. DOL WHD Weighs In

Hot off the regulatory presses, the U.S. Department of Labor (DOL) Wage & Hour Division (WHD) issued Monday morning, August 24, 2020 guidance in the form of FIELD ASSISTANCE BULLETIN No. 2020-5 on how hourly nonexempt workers should accurately track compensable work; and employers’ responsibility thereof: https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-5.

Aside from this familiar boldface section when effectively tracking the hours worked by nonexempt hourly employees:

Employer Must Pay for All Hours Worked that it Knows or Has Reason to Believe Was Performed

The FLSA requires an employer to “exercise its control and see that the work is not performed if it does not want it to be performed.” The employer bears the burden of preventing work when it is not desired, and “[t]he mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.” Work that an employer did not request but nonetheless “suffered or permitted” is therefore compensable (e.g., compensable as in the employer is required to pay the employee). “Employers must, as a result, pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work.”

A key point in the DOL WHD bulletin is a footnote:

2 Additionally, if an employer is otherwise notified of work performed through a reasonable method, or if employees are not properly instructed on using a reporting system, then an employer may be liable for those hours worked. Allen, 865 F.3d. at 946 n.5 (“One can certainly argue that an employer has not created a reasonable reporting system—has not been reasonably diligent—if its employees do not know when to use that system.”).

In other words, when nonexempt hourly employees working from home:

• Communicate on an employer’s Slack and other messaging platform;
• Respond to emails;
• Answer phone calls and voicemails;
• Prepare any type of reporting;
• Post content on the employer’s official social media channels like Facebook, Instagram, etc.

And don’t log that time worked on the employer’s time sheet, the employer can potentially / reasonably conclude that the nonexempt hourly employee performed is compensable, and therefore should be counted as time worked to be paid.

Does your Work From Home Policy (and if you don’t have one, it’s a good idea to develop and implement this policy) specifically spell out what is compensable work for nonexempt hourly employees’ time-worked tracking, in business and at work?