More than a third of U.S. workers are now telecommuting because of the COVID-19 pandemic, leaving many employers facing new challenges in keeping track of remote employees' compensable time, attorneys say.
Recent data from the U.S.
Census Bureau suggests nearly 89
million out of roughly 240 million workers in the U.S. have "substituted some or all of their typical in-person work for telework" due to the ongoing novel coronavirus crisis.
What's more, surveys from
Gartner Inc. and
PricewaterhouseCoopers LLP released last year indicate that a majority of employers are open to continuing remote work even after the worst of the outbreak passes.
But keeping track of employees' compensable time can be harder when they're working from home. Here, Law360 explores some common timekeeping pitfalls and examines some strategies for avoiding them.
Make Sure Work Hours Policies Are Clear
The most common piece of advice attorneys shared with Law360 is for employers to create clear policies around timekeeping for teleworkers, and to make sure those policies are clearly communicated.
Elizabeth Arnold, who works on labor and employment law issues at the consulting firm
Berkeley Research Group LLC, co-authored a recently published report with her colleague Chester Hanvey about wage and hour compliance in the COVID-19 era. Somewhat unsurprisingly, their study found that policy clarity was closely correlated with compliance.
While the study found that communication between workers and management hadn't suffered greatly with the shift to remote work, that didn't necessarily mean that workers had a firm grasp on exactly how to log their hours.
"Employees may think the policies are clear, but then they may not actually understand all of them," Arnold told Law360. "There could be a disconnect there."
Computer boot-up and shutdown time is a common area of confusion, Arnold said, noting that the time workers spend preparing digital workspaces can be significant when they need to log in to secure networks or load cumbersome programs.
Unreported work time is also common when employees are called upon outside of their normal working hours, Arnold said, pointing to the example of communications from managers that might arrive on nights, weekends and days off.
"Emails, text messages, phone calls after hours: those are really areas where there can be a lot of confusion," she said.
Lewis Maltby, the president of the nonprofit National Workrights Institute, suggested that workers push for a seat at the table when companies are coming up with remote work policies.
"If you ask nicely, you might get the opportunity to do it," he said.
Maxine Adams, an attorney with management-side firm
Epstein Becker Green, recommended that employers review their written policies to ensure they expressly prohibit off-the-clock work and failure to record all time worked. Adams also advised investing in training to make sure employees understand record-keeping rules as well as practical aspects like how to use timekeeping software.
Additionally, Adams recognized that many employers have offered greater scheduling flexibility to their remote workers in order to accommodate challenges related to COVID-19.
"If they do, employers should provide clear instructions about how to request a more flexible schedule and how to really record hours worked if not continuous," the Epstein Becker attorney said.
Keep Contemporaneous Records
Accurate record-keeping is an important aspect of wage and hour compliance, as made clear by
recent guidance on this topic from the
U.S. Department of Labor. But
Venable LLP partner Nick Reiter, who represents employers, told Law360 that the realities of remote work can complicate the picture for employers.
Many employees who have shifted to remote work had been used to a more structured schedule, or they may have been used to punching in and out on a physical time clock in the workplace, he said.
Normally, Reiter said, employment attorneys tend to advise employers not to give employees remote access to work through a company-issued cellphone or computer due to the risk of facing claims for unpaid work.
"But now you can't give that advice anymore," he said. "By necessity, some of those people need to do their job on a telecommuting basis. Because of the pandemic, we're thrust into this risky employment situation."
Given the current reality, Reiter urged employers to try to record compensable time as close as possible to when it's worked.
"If the employer does not have contemporaneous time records, then one, that can be a record-keeping penalty in some jurisdictions, and two, it can start to chip away at the credibility of the employer's [other] noncontemporaneous records," he said.
Reiter also recommended having employees initial their time entries at the end of every day, so the employee or their manager can address any issues as soon as they arise.
"By initialing or signing, that's the employee's signoff that's saying, this is right," the Venable partner said. "That makes it much harder to challenge."
Additionally, digital tools can help employers track workers' hours, but such tracking can stray into uncomfortable territory, said Maltby of the National Workrights Institute.
Maltby recommended that workers stay informed about management's monitoring policies. And he said it's a good idea for workers to log off the company network or use their own device for personal communications and internet activities.
"People don't always think about it, or it's too much trouble, and then privacy is compromised," he said.
Don't Let Your Guidelines Gather Dust
The transition to remote work in the midst of a pandemic has posed challenges for both workers and management. In order to make sure timekeeping stays on track, BRG's Arnold recommended that employers periodically review and reevaluate their guidelines.
"Employers may choose to take this opportunity to check the clarity and level of detail of their policies," she said.
This kind of check-in can be particularly helpful for organizations that are just shifting to remote work for the first time, said Adams of Epstein Becker.
"You might want to have managers keep a closer-than-normal eye on time entries during the first few weeks of the transition to ensure the time the employee is reporting seems consistent with the employee's productivity and with other information that's going to be known by the managers," she said.
For employers that have already made the leap, Adams recommended doing a periodic spot-check to look for odd patterns in time entries, like signing in and out at the same exact time every day, or large divergences in recorded time versus productivity.
The BRG study found that wage and hour compliance for remote workers was closely tied to employees' personalities. Those with a greater degree of self-discipline were more likely to report their compensable time with a greater level of detail than those with less, the study found.
But for employees who don't abide by timekeeping policies, Venable's Reiter suggested that employers follow their normal disciplinary action.
"Even if the employee works the time without authorization and the employer is going to terminate the employment relationship because of the disciplinary issue, you still pay the employee," he said.
Nevertheless, Reiter also urged employers to take a hard look at their policies and procedures to see if there's room for improvement.
"I recognize there's an extra administrative burden to do that, but it goes such a long way," he said.
--Editing by Abbie Sarfo.
Correction: An earlier version of this article mistakenly identified Arnold as an attorney. The error has been corrected.
For a reprint of this article, please contact reprints@law360.com.