Working From Home or Living at Work: The Uncertainties of Tracking Work Hours While Working Remotely

For many parents, September decisively marks the end of summer as kids trade their bikes for backpacks and head to school. However, this year's continued uncertainty has spilled into the school year, and parents now find themselves supervising their at-home scholars while juggling their own work responsibilities. Although some parents may seek leave or paid time off (see New Jersey employers' obligation to provide leave and/or paid time off to employees whose children are not attending in-person classes due to the COVID-19 pandemic here), others are grappling with adding the workload of full-time "teacher" to their already busy jobs. But when does the workday start and end, when it often feels like the entire day is filled with both working and teaching? The tough answer: It is not clear.

On August 24, the U.S. Department of Labor's Wage and Hour Division issued Field Assistance Bulletin 2020-5 to provide some clarification on an employer's obligation to track the compensable hours of its teleworking employees. Essentially, "[i]f the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked." An employer must be "reasonably diligent" in determining when an employee has worked, and may track and compensate for additional unscheduled work through mechanisms such as "reasonable reporting requirements." But "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."

Though the bulletin seeks to provide clarity, it leaves many questions unanswered and raises additional questions regarding an employer's burden in monitoring the time worked by its employees to ensure appropriate compensation. For example, some employees may end up spending several work hours during the day assisting their children with school activities and catch up on calls and e-mails in the evening. How does an employer calculate when the employee's workday began, paused, restarted and ended for purposes of calculating compensable time? What about time when an employee is simultaneously monitoring e-mail and actively assisting his or her child with a school assignment? Even though an employer may monitor usage activities of employer-issued devices to calculate compensable time, what if an employee uses a personal device for a work call? The practical reality is that while this may be more challenging in a remote work environment, non-exempt employees should be required to track all work time and account for "breaks" needed to address child care and home schooling issues so they can be properly paid for all time worked.

Another example of the murky area unaddressed by the bulletin is whether an employee who is asked to primarily work from home can be compensated for commuting time for necessary visits to the office. Normally, commuting time is not compensable, but if an employee who is working from home has to expend two hours to attend a mandatory meeting at work, should the employer be compensating the employee for that time? Although existing law is clear that commuting time to and from work as part of a regular commute is not compensable, there is a reasonable argument that time spent traveling to an office that is not part of a regular commute for employees who are working remotely from home may be compensable.

Finally, when employers begin requiring employees to return to the workplace, should employers compensate employees for time-consuming COVID-19-related safety procedures? For example, in a large office building in a metropolitan area, building management and/or city and state orders may require temperature screenings, hand sanitization and limited elevator capacity in order to facilitate social distancing. During peak hours, it would not be surprising if an employee has to add an extra 20 minutes (or more) of compensable time once in the building vicinity in order to begin working on time. Even though employers are not required to pay for de minimis amounts of time spent preparing to work, many employers, in order to avoid potential wage claims, are opting to pay employees for more than de minimis time spent on the employer's premises engaging in required safety checks.

Amidst this uncertainty, one thing is certain: This new work environment has shaken up the existing employment framework, and employers should expect significant changes to the compensation models previously in place. Employers should encourage employees to fairly and accurately report their hours worked, invite communications regarding any anticipated concerns, and monitor federal and state advisories.

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COVID-19 DISCLAIMER: As you are aware, as a result of the COVID-19 pandemic, things are changing quickly and the effect, enforceability and interpretation of laws may be affected by future events. The material set forth in this document is not an unequivocal statement of law, but instead represents our best interpretation of where things stand as of the date of first publication. We have not attempted to address the potential impacts of all local, state and federal orders that may have been issued in response to the COVID-19 pandemic.