by Daniel Reed
The Department of Labor (“DOL”) recently provided clarity on issues related to remote work and remote learning.
Reasonable Diligence in Tracking Remote Work Employee Hours
The DOL issued guidance on employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work agreement.
Under the Fair Labor Standards Act (“FLSA”), employers are required to pay their employees for all hours worked, including work not requested, but suffered or permitted. This includes work performed at home. If through reasonable diligence the employer has reason to believe that work is being performed, the time must be counted as hours worked. What constitutes reasonable diligence in the context of remote work? Employers are limited in their ability to monitor employees working from home, making it difficult to identify work performed in excess of their employees’ scheduled hours.
In the new guidance, the DOL explains that employers may exercise reasonable diligence by providing a reasonable reporting procedure for non-scheduled time and then compensating employees for all reported hours of work, even hours not requested by the employer. If an employee does not report unscheduled hours through such a procedure, the employer is not required to undergo impractical efforts to investigate further to identify unreported work hours.
For example, though an employer may have access to non-payroll records, such as records showing employees accessing their work-issued electronic devices, reasonable diligence generally does not require the employer to sort through this type of information to identify unscheduled work time. The DOL does note, however, that an employer’s time reporting process will not constitute reasonable diligence if the employer prevents or discourages an employee from accurately reporting the time worked.
Leave for Child’s Remote Learning Days
The DOL added three Frequently Asked Questions (“FAQ”) to its FAQs page. The newly added FAQs provide clarity on whether a working parent is entitled to paid leave on a child’s remote learning days under the Families First Coronavirus Response Act (“FFCRA”). Importantly, the FFCRA only applies to certain public employers and private employers with fewer than 500 employees.
Eligible employees may qualify for paid leave under the FFCRA if the employee is unable to work or work remotely because the employee is caring for a child whose school is closed for reasons related to COVID-19 and no other suitable person is available to do so. The DOL added FAQ #98 to clarify that when a school is on a hybrid schedule, offering certain days for in-school attendance and certain days for remote learning, the school is considered closed on the days that the child is not permitted to attend school in-person. FAQ #99 then clarifies that when the employee is given a choice between in-school instruction and remote learning, and the employee chooses remote learning for his or her child, the school is not deemed closed. Lastly, FAQ #100 confirms that a parent may take FFCRA leave when his or her child attends a school that has not reopened to in-person instruction.