Remote work can make it harder to identify when the workday really starts and ends. However, federal and state timekeeping and pay rules for non-exempt employees still apply. Here are three remote-work situations that commonly pose pay-related risk, along with steps employers can take to address them.
KEY POINTS
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1. Checking work-related messages
Time spent by non-exempt employees outside of scheduled hours responding to work emails, checking messages, participating in chats, accessing the company network, or responding to app notifications is generally hours worked and must be paid.
Even small amounts of this activity each day can create significant pay and overtime exposure, especially when it occurs across multiple employees.
To help employees record and report this time, many employers have moved to electronic timekeeping systems that workers can access via a computer or mobile device.
2. Unscheduled work
Work that wasn’t requested or pre-approved can still count as compensable time if the employer knew or should have known it was being performed. This includes, but isn’t limited to, clocking in early, clocking out late, and performing work off-the-clock remotely.
For example, if a non-exempt employee has worked overtime (remotely or otherwise), they must be paid overtime, regardless of whether the overtime was pre-authorized.
A policy that no overtime work is permitted unless authorized in advance doesn't relieve the employer of this requirement. Similarly, employers are prohibited from withholding pay if the employee performs non-overtime work and the employer knew or should have known about it.
Employers may subject the employee to disciplinary measures for performing unauthorized work or overtime, but in no case may the employer withhold pay.
At a minimum, employers should consider policies that require employees to record all hours worked and expressly prohibit off-the-clock work. Supervisors should also be trained on how to spot and respond to potential off-the-clock work.
Many employers have also implemented geofencing and other technology to prevent off-the-clock work. A geofence is a virtual boundary around an approved work location. Timekeeping systems can use that boundary to allow, block, remind, or automatically trigger clock-in and clock-out events based on where the employee’s device is located. Geofencing can also be aligned with scheduling rules to warn or block clock-ins/clock-outs outside approved locations and time windows . These systems shouldn’t prevent employees from recording their time, and employers should have override mechanisms in place. Also, keep in mind that the state or local laws may require notice and consent and impose other restrictions on using this technology. Check applicable state and local laws for details.
3. Missed or interrupted meal periods
Remote work can make meal periods harder to monitor and easier to interrupt or leave unrecorded. Employees may also be more likely to work through lunch when they are at home and away from normal workplace cues.
If a non-exempt employee performs work during an otherwise unpaid meal period, that time is generally compensable. In addition, some states impose specific meal-period requirements, including timing, duration, or premium-pay obligations.
If a meal period is interrupted by work, employers should ensure the time is recorded and paid as required by applicable law. Depending on the circumstances and state law, the employee may need to be paid for the interrupted time and/or provided a compliant meal period.
Employers should make it clear that employees must promptly report missed, interrupted, or shortened meal periods and explain exactly how to do so.
Meal-period requirements also vary by state, so employers should ensure their policies and pay practices align with applicable law.
Conclusion
Remote work and timekeeping policies should do more than define scheduled hours. They should also explain how employees must record and report after-hours work, unscheduled work, and missed and interrupted meal periods. Just as importantly, supervisors should be trained to recognize and respond to these situations consistently.
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