Managing FD Staff Working from Home and the FLSA

Today’s FLSA Question: I am an HR manager for a medium sized city. We have a number of non-essential personnel, including several members of the police and fire department’s clerical staff, working from home due to the pandemic. Traditionally, these employees worked Monday-Friday, forty-hour per week schedules. Now, since these non-essential personnel are working from home, we have very little control over the way they spend their workdays. In fact, I received several emails last Sunday morning from one of the fire department’s clerical workers. On one hand, I am not opposed to giving our employees working remotely flexibility given the current challenges we all face. However, I am genuinely concerned our laid-back approach could result in liability in the event one of these employees makes a claim for unpaid work hours. What do you recommend as a starting point for managing this “off-the-clock” type of concern?

Answer: Wage and hour lawsuits containing allegations of uncompensated “off-the-clock” work continue to rise. You are smart to pro-actively identify and manage this potential liability, rather than wait for the inevitable. The Department of Labor (DOL) recently issued a Field Assistance Bulletin (FAB) aimed at providing employers [like yourself] guidance in managing this precise issue. Department of Labor field bulletins can prove a helpful resource for employers when questions like this arise. In the DOL’s latest bulletin, entitled Field Assistance Bulletin 2020-5, the Wage and Hour Division tackles some of the challenges associated with tracking work hours for employees working remotely, or as the DOL terms it “teleworking.”

What is a Field Assistance Bulletin, and can I rely on it?

Field Assistance Bulletins are intended to provide guidance to the DOL’s Wage and Hour Division’s (WHD) investigators and staff related to the enforcement and interpretation of wage and hour related regulations [i.e. the FLSA]. Typically, FABs are released when the DOL either changes its official position related to a particular topic (due to either an adverse legal opinion or overall change in policy) or seeks to clarify existing wage and hour enforcement guidelines. It is important to note FABs do not carry the same persuasiveness or authority as the FLSA or DOL regulations. Courts are not required to follow FABs. However, FABs offer insight on how DOL investigators would approach specific situations related to interpreting and enforcing wage and hour regulations and can be very useful for employers seeking to avoid wage and hour violations.

How does the DOL suggest employers track hours worked by employees working remotely?

The WHD’s Field Assistance Bulletin No. 2020-5 provides commonsense guidance for employers managing employees working remotely. For starters, the DOL clearly articulates that the employer is responsible for paying non-exempt employees for all hours worked “including work not requested but suffered or permitted.” When an employee performs work for his or her employer, whether in the workplace or at their home, they must get paid.

In addition to this general principle, employers also have an obligation to exercise control over employees to “ensure that work is not performed that they do not wish to be performed.”

This includes work the employer has reason to know is being performed, even when the employee does not seek compensation for this worktime.

Those two general principles typically do not present enormous challenges for employers managing workers within the confines of a common workplace. However, the catch—so to speak—is how can employers follow these requirements when employees are working away from a common workplace?

First, the FAB encourages employers to exercise reasonable diligence in monitoring and tracking employee’s remote work time. In addition to exercising reasonable diligence, employers should create policies that require the reporting of “uncompensated work time.” These policies must be reasonable and clearly articulated to employees. Employees cannot be “discouraged or impeded” from reporting unscheduled work time and the employer must pay employees for all unscheduled hours worked.

The FAB was heavily influenced by a recent federal court decision related to the compensability of off-the-clock work performed by a group of inner-city police detectives. In that landmark decision entitled, Jeffrey Allen, et al, v. The City of Chicago, a group of elite Chicago Police detectives filed suit against the city looking to recoup back wages for time spent off-duty checking and responding to emails and text messages. In the end, the court rejected the officers’ claims because the city had implemented a reasonable policy and process related to compensating the detectives for any unscheduled off-the-clock work. According to the court, the officers failed to follow that policy. Additionally, the detectives failed to show that superiors discouraged detectives efforts to receive compensation for off-the-clock work. As a result, the city was not liable for failing to pay the detectives for this time. For more details on that lawsuit, including a copy of the decision, from my good friend and college Curt Varone’s Fire Law Blog, click here.

What is the next step for concerned employers?

For starters, employers must remain vigilant monitoring hours worked by employees remote from the workplace. A basic knowledge of the FLSA is helpful in determining what hours must be compensated and what hours do not need to be compensated. Next, employers should review policies and procedures related to off-the-clock compensation. Ensure that these policies allow employees a clear path to submit requests for off-the-clock work. Additionally, your policies should clearly articulate which supervisors can authorize overtime. This is especially important for public safety organizations with a defined rank structure. Finally, review current practices to ensure that your employees are not “discouraged or impeded” from filing claims for off-the-clock work. For example, when was the last time that an employee submitted a claim for off-the-clock work? If the answer is never, or at least you cannot recall the last submission, you may have a problem. You should investigate further.

Policies and procedures pertaining to off-the-clock work will likely be different for each organization depending upon the structure and size of the department. What works for the City of Chicago may not work for a smaller city, town, or village. Here is a copy of the FAB.