By Jon Steingart

Law360 (August 24, 2020, 6:16 PM EDT ) The U.S. Department of Labor on Monday issued guidance for how employers should track unscheduled work hours now that the pandemic has made long-term remote work a reality for many businesses that didn't offer it before.

The guidance comes in the form of a Field Assistance Bulletin to Wage and Hour Division enforcement personnel. The WHD often makes these documents public so employers and workers can understand what it takes to comply with the Fair Labor Standards Act's requirement to pay for work hours.

Employers can stay on the right side of the law by letting workers report work they performed that wasn't scheduled, WHD Administrator Cheryl Stanton said in the bulletin. Employers shouldn't discourage workers from reporting additional time.

"However, if an employee fails to report unscheduled hours worked through such a procedure, the employer is generally not required to investigate further to uncover unreported hours," Stanton said, citing a Seventh Circuit ruling that found the city of Chicago didn't have to pay for police officers' after-hours work because there was nothing preventing them from requesting compensation.

Employers must pay for time when they schedule an employee to work, as well as for unscheduled time when they should know that an employee worked, Stanton said in the bulletin. Employers may have access to other records that suggest an employee was working outside of scheduled hours, such as logs showing when workers used company-provided electronic devices, but they don't need to go through "impractical" efforts to check for unreported time.

Monday's bulletin applies broadly to situations in which employees work from home or in another location that isn't under an employer's control, Stanton said.

"While this guidance responds directly to needs created by new telework or remote work arrangements that arose in response to COVID-19, it also applies to other telework or remote work arrangements," she said.

"Due to the coronavirus pandemic, more Americans are teleworking and working variable schedules than ever before to balance their jobs with a myriad of family obligations, such as remote learning for their children and many others," Stanton said. "Today's guidance is one more tool the Wage and Hour Division is putting forward to ensure that workers are paid all the wages they have earned, and that employers have all the tools they need as they navigate what may, for many, be uncharted waters of managing remote workers."

Kathleen Caminiti, a co-chair of management-side firm Fisher Phillips' wage and hour practice group and partner in its New Jersey and New York offices, said the key takeaway is that employers should head off off-the-clock claims by coming up with a way to record work time that falls outside of regularly scheduled hours.

"I think what they are trying to do is restate the existing rule, encourage employers to develop policies, practices and procedures with the suggestion that those policies, practices and procedures capture off-the-clock work," Caminiti said. In addition to making sure that employees are paid for their work, it also can bolster an employer's affirmative defense in the event questions arise about pay practices, she said.

The DOL addressed remote work during the pandemic in July, when it published guidance that said employers need not pay for midday breaks that teleworkers use for child care or to help with remote schooling. With this position, the DOL explained that applying the "continuous workday" rule — which avoids a minute-by-minute accounting of work and nonwork time by simply requiring pay for all hours between the start and end of a workday — "would discourage needed flexibility during the COVID-19 emergency."

In March 2017, the DOL under President Donald Trump withdrew a request for information it published under President Barack Obama that solicited public input on whether employees must be compensated for time spent using electronic devices to perform work outside of scheduled hours and away from the job site.

--Editing by Jack Karp.

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