While remote work has always been around in one form or another, it was not until the Covid-19 pandemic first took hold in the U.S. in early 2020 that it became a widespread practice for many businesses. Faced with stay-at-home orders that forced the closure of many traditional offices, many employers were forced to adapt how they did business in order to survive. While the pandemic fortunately appears to be largely behind us, many transportation companies continue to use remote workers for a variety of back-office positions, including customer service, reservations, dispatching and billing.

The consensus among most employment professionals is that remote work is here to stay for a variety of reasons. For one thing, many employees find it to be extremely attractive, particularly those employees with young children or who have physical disabilities. Not having to trudge into the office on a daily basis saves employees the time and expense associated with commuting and allows employees to have a more flexible work schedule; factors that enhance employee retention and employee satisfaction. While the jury is out as to whether employees are more productive working in the office or remotely, it is clear that this trend towards working off-site is not going away, and employers who want to attract and retain the most talented employees must be open to it.

However, employers that use remote workers risk running afoul of labor laws if they are not careful. Regardless of whether an employee is working behind a desk in your office or at their kitchen table wearing a bathrobe, it is extremely important that the employee’s time be properly tracked and recorded. A recently issued Field Assistance Bulletin issued by the U.S. Department of Labor (DOL) highlights potential slip-ups DOL investigators have been told to be on the lookout for when evaluating whether remote workers are being paid properly. Keeping proper tabs on your remote workers’ time will help ensure your company does not become a target.

Fair Labor Standards Act Considerations

We’re all familiar with the Fair Labor Standards Act (FLSA) and its requirements that nonexempt employees (a) be paid for all hours worked and (b) paid time and one-half for all hours over 40 hours per workweek. Employers that fail to properly record a remote employee’s hours run the risk of violating the FLSA and analogous provisions of the NYS Labor Law. Accordingly, it is important that remote workers be required to report the time they start and end their workday, and any gaps in working time in between.

With respect to short breaks of 20 minutes or less (such as bathroom or coffee breaks), the law generally requires that these breaks be counted as hours worked. Longer breaks where the employee is completely relieved from duty, on the other hand, are not considered hours worked. Thus, for example if an employee interrupts her workday for an hour to pick her child up from school, that is not considered to be compensable time. Likewise, meal breaks (typically 30 to 60 minutes) are not considered work time if and only if the employee is completely relieved from duty. If the employee is answering phone calls for the employer while she is eating her lunch, all of the time must be paid.

Because the employer bears the burden of demonstrating that an employee has been paid properly in defending against an FLSA claim, it is never advisable to set a remote employee up on a “schedule” (e.g. start at 9:00 a.m., lunch from 1:00 p.m. to 2:00 p.m., and end at 5:00 p.m.). The DOL and courts view uniform time records of this type as mere “guesstimates” of the hours actually worked, leaving the employer exposed to such claims as “I worked through lunch every day” and “I started at 7:00 a.m. not 9:00 a.m.” The far better practice is to create contemporaneous time records of each event as the day unfolds, either through a manual timesheet or electronically, and this should be done as a condition of permitting an employee to work remotely.

Family Medical Leave Act Considerations

Non-compliance with the Family Medical Leave Act (FMLA) is another potential way employers with remote workers can get into trouble. The FMLA entitles eligible employees of covered employers to take job-protected leave, which may be unpaid or used concurrently with accrued paid leave, for specified family and medical reasons. While on leave, the employer must maintain the employee’s group health coverage if any, and following leave restore the employee to the same or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.

Employees are eligible for FMLA leave when they have worked for the employer for at least 12 months; have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave; and work at a location/worksite where the employer has at least 50 employees within 75 miles. Obviously, if an employer fails to keep accurate records of the number of hours worked during the 12-month period prior to the leave request, it is possible for an eligible employee to be denied leave that he or she is otherwise entitled to by law. Since it is the employer’s obligation to show that the employee has not met the hours-of-service requirement in denying FMLA leave, inaccurate records to back up a denial may result in a finding that the employer violated the FMLA.

When considering a remote employee’s FMLA request, it is important to note that the employee’s home does not constitute a “worksite” for FMLA purposes. When an employee works remotely, their worksite is considered to be the office to which they report or from which their assignments are made. Thus, if for example your office is in New York and has 50+ employees, a lone remote employee who happens to work in Hawaii is considered to be part of the New York worksite, and would be eligible for FMLA leave provided she worked the minimum 1,250 hours the prior 12 months.

In conclusion, the remote work revolution caused by the Covid pandemic is likely permanent. To protect against potential FMLA claims, it is important that employers accurately track and record hours worked off-site by their remote workers. Inaccurate records can lead to an improper denial of an FMLA claim, and the exposure that goes hand in hand with such a violation.

Similarly, improper records may result in underpayment of hourly and overtime wages, and result in a violation of the FLSA. The same holds true when it comes to losing track of what is being done on breaks. As mentioned above, if a remote employee is working through lunch breaks or other breaks – even they are doing so of their own volition – it is important that the time be counted as compensable work time. If this is not done and the employment relationship subsequently sours for whatever reason, it is easy for the employee to turn around and claim entitlement to back pay, related damages, and costly attorney’s fees.

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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