Earlier this year, became, for many of us, part of our “new normal.” And such arrangements are likely to continue in the future. With the number of new infections continuing to rise throughout the United States, many employers have chosen to allow their workforce to continue to work from home for extended periods. Some employers have allowed their workforce to “stay home” indefinitely and instituted more robust and permanent telework policies. While reports show such arrangements have positive impacts on employee morale and provide greater flexibility for everyone involved, telework has potential issues for employers. In fact, recent reports indicate a sharp rise in wage and hour claims. I surmise part of this rise is, in part, due to the remote work relationship. One area for telework exposure for employers is regulating “off-the-clock” work (“OTC Work”) of their employees.
What is OTC Work?
The name says it all. OTC Work occurs when a non-exempt employee performs work and fails to record the time for their work. Some examples include working during “off hours,” working during an unpaid meal period or completing work before clocking in or after clocking out.
Underreporting time may be intentional or unintentional. For instance, some employees perform OTC work intentionally to catch up on work or to finish time-consuming projects in a timely fashion. On the other hand, some employees simply forget to clock-in or out. This is especially true in the remote work environment.
In a traditional employment setting, it is somewhat easier to monitor OTC work. Employers can encourage employees to take breaks and lunches outside of their work areas, limit employees’ remote access to email and telephone, prohibit employees from taking work home, and other such measures. As you can imagine, however, this becomes much more difficult in a remote work environment where company policies become more difficult to enforce and employees are less likely to maintain set schedules.
Employers’ Responsibility as to OTC Work
The FLSA is clear—employers must pay employees for all their time spent engaging in compensable activities. The FLSA, however, does not require employers to pay for work they do not know or have no reason to know about. Instead, the DOL charges employers with actual or constructive knowledge a reasonably diligent employer should have acquired through reasonable diligence. Thus, it is important for employers to make every attempt to monitor for OTC work and prevent such work from occurring.
Employers should have a clearly articulated policy forbidding OTC work. Having such a policy on its own, however, is not enough. Instead, employers are tasked with making every effort to enforce the rule. It is important for employers to ensure the process is straightforward. The policy should have clear steps an employee must take to report to report overtime work and to seek approval for overtime in advance. Employers should also enforce their policies and discipline employees who fail to comply.
Employers should also be aware there is no mandate that they take impractical steps to verify hours worked by cross-referencing time slips with emails and calls. That said, employers want to take every step to ensure OTC is not happening.
About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.
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