Typically, telecommuting or working remotely has been reserved for exempt workers since those workers are not entitled to overtime pay and employers need not worry about the number of hours worked by the exempt employee. But the reality is that the use of technology in the workplace, whether company-issued or personal, has led to the increased accessibility employees have to their work, especially when off site or after hours.
Importantly, work not specifically requested by an employer, yet still allowed, is still compensable, and companies must be proactive in ensuring employees receive all pay due to them. Employers must pay non-exempt employees when they respond to emails, answer or send text messages, or make or answer phone calls outside of their regular work hours. Tracking such time presents many difficulties. Below, we have set forth some tips:
Find out if your current time tracking system can be accessed remotely. Employers must remember that the law requires employers to maintain contemporaneous and accurate records of non-exempt employees’ time worked each day. Many timekeeping systems can be accessed remotely by employees if performing work outside of the office. In the absence of accurate time records, courts will employ a rebuttable presumption that the hours claimed by the employee are correct. Thus, employers must provide remote workers with the ability to access time tracking software so they can contemporaneously record their time.
Employers must clearly explain what constitutes “hours worked” to non-exempt employees as well as to their supervisors. Non-exempt workers’ hours worked are usually determined based upon the time an employee starts their “principal activity” and the time on that day at which they cease the “principal activity.” Employees must understand the expectations employers have if employees are to track their own compensable time. Usually, meal breaks of 30 minutes or more where employees are not performing any work can be unpaid, while rest breaks of 20 minutes or less should paid for as working time.
Develop or update your timekeeping policy. Most employers share the concern that permitting non-exempt workers to work remotely will allow those employees to work too many hours at home and result in high overtime costs. Employers should institute a policy prohibiting off the clock work. If work performed remotely will result in a non-exempt employee to exceed the 40 hour mark in a workweek, employers can require non-exempt employees to receive advanced written approval that they may work overtime. In addition, this policy should explicitly state that under-reporting hours worked, or over-reporting hours worked is strictly prohibited. Employers should have all employees execute an acknowledgment that they have been made aware of and understand the time-recording policies. If any non-exempt employee fails to obtain the written approval to work overtime hours, employers are still legally bound to pay the overtime but may take remedial action due to the employee’s failure to comply with the policy.
Managers must be instructed and understand that they are not permitted to direct non-exempt employees to perform work off the clock. When overtime is not permitted managers must tell employees that “no one is allowed to work any extra hours.” It should be noted that the previous statement is very different from telling employees that “the business cannot afford to pay for overtime,” since employees are likely to interpret that they should still work the extra hours but not record their time. Similarly, if a manager works longer or different hours than the employees who report to them, the manager should try to schedule sending emails during the employee’s normal hours. If that is not practical, managers should include in the email’s subject line that the employee should not respond to the email until they return to work. Supervisors must also be trained to report any potential off the clock work by non-exempt employees to enable HR or upper level management to speak with the employee to determine if they are owed pay for hours worked.
Set boundaries for any kind of remote work non-exempt employees may perform. This should include establishing well-defined rules about when and if a non-exempt employee is permitted to work remotely. For instance, employers can set times when workers may use company-issued phones or may log into their computer remotely. However, it may not be practical for all employers to set specific times for remote work. Nonetheless, employers should make certain that all non-exempt employees understand the boundaries for when they are permitted to work remotely and how time is to be recorded to ensure wages are properly paid.