Working from home and keeping time
It’s becoming more and more common for employees to work from home. Of course when they work they are to be paid for that work. But what if the employee works but doesn’t follow the employer’s policy in keeping track of that time. Are they still entitled to be paid for the work they did? A recent appeals court said “No” not if the employee failed to follow the employer’s time keeping policy.
The FLSA provides that qualified employees shall be compensated at overtime rates for time worked in excess of forty hours per week. In this case, the employee filed his FLSA claim in district court in order to receive payment for the eighty hours he allegedly worked from home. To succeed on an FLSA claim for unpaid overtime, the plaintiff has the burden of proving that he performed work for which he was not properly compensated. It is the employee’s burden to produce sufficient evidence to show the amount and extent of that work. The district court found that the employee produced uncontroverted evidence that he actually worked overtime. The evidence included the employee’s own testimony, his wife’s testimony, and testimony of discussions he had with his supervisor about working from home after the birth of his first child. Significantly, the employee chose not to enter any of the hours he allegedly worked from home in the employer’s timekeeping system. He did not keep any other record of any sort to document the hours worked.
Who is responsible for accurate records?
The employee argued that his employer is responsible for keeping accurate records and the employee cannot bear the burden of proving the precise amount of overtime worked. But courts only relax the plaintiff’s burden to show the amount of overtime worked where the employer fails to keep accurate records. It was undisputed that the employer kept accurate records, and employees can even access the timekeeping system from home. The court found that the employee easily could have entered his hours and in fact, he was required to do so in accordance with the employer’s policy. Accordingly, the court concluded that there was no failure by the employer to keep accurate records, but there was a failure by the employee to comply with his employer’s timekeeping system. So, under these circumstances, where an employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not a FLSA violation.
Lessons for employers
This case turned out well for the employer. It suggests that an employee who fails to follow a published policy requiring the employee to accurately record hours worked will not prevail on a claim for unpaid time when they fail to properly advise their employer of the time they claim to have worked. This outcome applies even if the employee can later prove that they actually worked. It’s the employee’s burden to tell the employer when they do – especially when they work from home or elsewhere. To assure this type of positive outcome employers should consider:
- Reviewing existing time keeping policies;
- Establishing specific policies and procedures for reporting time worked at home or remote locations;
- Establishing specific policies and procedures for reporting time spent reviewing emails and taking phone calls away from work;
- Training supervisors to insist on accurate time keeping in accordance with the policies and procedures;
- Informing employees of their obligation to accurate record all of their time worked; and
- Documenting the efforts to inform employees of these obligations.
Reference: Brown v. ScriptPro, LLC, (10th Cir., No. 113293, Nov. 27, 2012).
Please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
