Hunton Employment & Labor Perspectives

Last week, the Department of Labor (“DOL”) provided clarity regarding issues of remote work and remote learning.

First, the DOL issued guidance regarding employers’ obligation to track the work hours of employees who are working remotely due to COVID-19 or due to an already existing telework or remote work arrangement.

The Fair Labor Standards Act (“FLSA”) requires employers to pay their employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.  According to the DOL, employers are obligated to pay for unscheduled work hours that they should have known about through reasonable diligence.  In the context of remote work, what is considered reasonable diligence?  With employees working at home, an employer cannot monitor the coming and going of their employees to detect work performed in excess of their employees’ scheduled hours.

In the new guidance, the DOL explained that “reasonable diligence” does not require the employer to scour the employee’s phone records or electronic records to uncover unreported work hours.  The DOL stated that it was sufficient for employers to establish a reasonable process for employees to report unscheduled work time.  If an employee fails to follow reasonable time reporting procedures, he or she is deemed to have prevented the employer from knowing its obligation to compensate the employee.  Thus, the failure to compensate the employee for unreported work hours does not violate the FLSA.

Second, the DOL added three Frequently Asked Questions (“FAQ”) to its FAQs page providing clarity regarding whether a working parent is entitled to paid leave on a child’s remote learning days under the Families First Coronavirus Response Act (FFCRA).  The FFCRA does not apply to all employers, only certain public employers and private employers with fewer than 500 employees.

FFCRA-eligible employees may qualify for paid sick leave if the employee is unable to work or telework if the employee is caring for a child whose school is closed for reasons related to COVID-19.  The DOL added FAQ #98 to clarify that when a school is on a hybrid scheduled, with certain days for in-school attendance and certain days for remote learning, the school is “closed” on the days that the child is not permitted to attend the school in-person.  However, FAQ #99 provides that when a school provides a choice between in-school instruction and remote learning, and the employee chooses remote learning for his or her child, the school is not deemed closed. FAQ #100 confirms that a working parent may take FFCRA leave when his or her child attends a school that has not reopened to in-person instruction.