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MEMORANDUM FOR:Regional Administrators
Deputy Regional Administrators
Directors of Enforcement
District Directors
From Cheryl M. Stanton Administrator
Subject: Employers’ obligation to exercise reasonable diligence in tracking teleworking employees’ hours of work.
This Field Assistance Bulletin (FAB) provides guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or 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 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.
An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home. See 29 C.F.R. § 785.11-12. If the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. An employer may have actual or constructive knowledge of additional unscheduled hours worked by their employees, and courts consider whether the employer should have acquired knowledge of such hours worked through reasonable diligence. See Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018). One way an employer may exercise such diligence is 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. Id. If an employee fails to report unscheduled hours worked through such a procedure, the employer is not required to undergo impractical efforts to investigate further to uncover unreported hours of work and provide compensation for those hours. Id. However, an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act. Id. at 939; see also Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 388 (6th Cir. 2016).
Background
The FLSA generally requires employers to compensate their employees for all hours worked, including overtime hours. As the Department’s interpretive rules explain, “[w]ork not requested but suffered or permitted is work time” that must be compensated. 29 C.F.R. § 785.11. This principle applies equally to work performed away from the employer’s worksite or premises, such as telework performed at the employee’s home. Id. § 785.12. “If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” Id. Employers are required to exercise control to ensure that work is not performed that they do not wish to be performed. Id. § 785.13.
While it may be easy to define what an employer actually knows, it may not always be clear when an employer “has reason to believe that work is being performed,” particularly when employees telework or otherwise work remotely at locations that the employer does not control or monitor. This confusion may be exacerbated by the increasing frequency of telework and remote work arrangements since the Department issued the above interpretive rules in 1961. The Bureau of Labor Statistics estimated in 2019 that roughly 24 percent of working Americans performed some work at home on an average day
(https://www.bls.gov/news.release/atus.t06.htm). And these arrangements have expanded even further in 2020 in response to the COVID-19 pandemic. Accordingly, WHD believes it is appropriate to clarify this issue.
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.” 29 C.F.R. § 785.13. 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.” Id.; see Hellmers v. Town of Vestal, N.Y., 969 F. Supp. 837, 845 (N.D.N.Y. 1997).1 Work that an employer did not request but nonetheless “suffered or permitted” is therefore compensable. Id. § 785.11; see also 29 U.S.C. § 203(g). “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