WHD Issues Field Assistance Bulletin Clarifying Employer’s Obligations Concerning Telework

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The U.S. Department of Labor’s Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-5 to clarify an employer’s obligation under the Fair Labor Standards Act (FLSA), to track compensable hours employees work while away from worksites or premises controlled by the employer. This guidance responds to the unprecedented number of telework or remote work arrangements that arose in response to COVID-19.

The guidance reaffirms that employers are obligated to compensate their employees for all hours worked, including work not requested but permitted, and applies equally to work performed at home. Therefore, if the employer has reason to believe that an employee is performing work, the time must be counted as compensable hours worked.

Employers must pay employees the same hourly rate or salary regardless of where the work is taking place; unless the employer has a union contract or other employment contract. Additionally, when the Service Contract Act (SCA) or other state laws regulating the payment of wages also apply, nothing in the guidance nullifies or overrides any higher standards provided by such laws. 

The guidance also emphasizes the employer’s obligation to track all compensable hours worked by employees, which could be satisfied by providing a reasonable reporting method that also captures the non-scheduled time and even hours not requested by the employer. Keep in mind that if an employee fails to report unscheduled hours worked through such a method, the employer is then not in violation of the FLSA as the employer has no reason to know about those hours.

The WHD intended this guidance as another tool to help ensure employees receive the wages they have earned and that employers have the means to manage remote workers. This is a link to the Bulletin; https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_5.pdf