Employees that work from home on an hourly basis need an ability to clock in and out for their scheduled hours and an ability to report the time that they worked in an unscheduled time. For example, if the employer was not expecting the employee to work at 10 pm, and yet they did, the employer has to put together a reasonable process for reporting the unscheduled work time so that the employee can be paid accordingly. It can be a discipline issue if they work unscheduled hours, and the employer may have to bar access to their clocking in if need be. No matter the circumstances, however, the employee must always be compensated for the extra hours.
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 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.
However, 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 Cor. 2016).