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Employment Law

Do you know you have to pay employees for…

On Monday, the Department of Labor (DOL) issued guidance for how employers should track unscheduled work hours now that remote work is a reality for many businesses due to the Coronavirus. 

Essentially, an employer must pay for all hours worked including work an employer does not request where an employee works remotely in any event and the employer knows or has reason to believe the employee performed such work.

To avoid having employees work unscheduled hours, an employer can have a rule that requires employees to get permission before working unscheduled hours. If the employee violates that rule, the company can also discipline the worker. However, the employer must pay the employee for those hours worked.

As to unscheduled hours worked that are unknown to the employer, the employer should set up a reasonable reporting procedure so that employees can record non-scheduled time worked — even the ones worked without permission — and get paid. This approach is suggested because when an employer has a reasonable way for employees to report unscheduled hours worked, and the employee fails to report those unscheduled hours worked, the employer is not required to investigate further to uncover unreported hours. For example, while an employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours,  the employer does not need to undertake impractical efforts such as sorting through this information to check for unreported time.

So, bottom line, employers should:

  1. Have a good system to record hours worked.
  2. Educate non-exempt employees about how to record hours worked.
  3. Implement a written policy that deters non-exempt workers from working unscheduled hours absent prior written permission from a supervisor or manager.
  4. Train managers on the policy. Also, make sure that managers and supervisors do not ask employees to work extra hours (e.g., even just checking emails and texts) unless they intend to pay for them.

If you have any questions, please contact Bob Lepp at or another member of our Employment Law group





Tue Aug 25, 5:41pm

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