Earlier this week, the United States Department of Labor (“DOL”) issued a “Field Assistance Bulletin” to address “Employers’ Obligation to Exercise Reasonable Diligence in Tracking Teleworking Employees’ Hours of Work.” While the Field Bulletin extensively discusses teleworking employees’ hours of work and the DOL’s expectations for employers in those remote work settings, the DOL’s standards and guidance is also instructive on how employers in the home care space should approach live-in and other cases where there are allegations that the employee performed unauthorized or unscheduled work (e.g., work during the evening) for which the employee is claiming entitlement to payment. For home care providers, there has been no shortage of class action lawsuits alleging that employees were not paid properly on live-in shifts, or other types of shifts. Thus, this Field Bulletin should be used by home care providers to improve any of their wage and hour practices, and as a shield in defending wage and hour lawsuits from caregivers who claim to have been underpaid.
The Field Bulletin starts with the premise that an employer is only responsible to pay for work hours – even if those hours were not authorized – if the employer had “actual or constructive” knowledge that the employee had worked those hours. Courts will consider whether employers should have acquired knowledge of such hours through reasonable diligence. And one way that an employer may exercise “diligence” to find out how many hours of work were performed is by providing a reasonable REPORTING procedure for non-scheduled work time, and then compensating employees for all reported hours of work, even those hours that were not authorized. Thus, this means that for live-in cases, it is not sufficient to assume that the aide is working 13 hours on every shift unless the aide calls in to the coordination department. The agency must create a clear and accessible system to report deviations from the expected 13-hour work schedule on live-in shifts. Failure to have such a process in place – and prove that the process existed – could doom a provider’s wage and hour class action case.
The Field Bulletin also highlights that an employer must “exercise control and see that work is not performed if it does not want it to be performed.” For remote employees who are overtime eligible (such as coordinators and other office staff, or caregivers), it is imperative for the employer to outline what work the employee should and should not perform while on a scheduled shift, as well as the hours of work. The employer must also clearly articulate in writing that any work performed beyond the assigned work hours has to be affirmatively reported to the employer, so that the employer knows how many hours of work to pay out to the employee. While employers can discipline employees work working in violation of any directives, work not requested but performed by the employee generally must be paid. In addition, and for good measure, employers should have timesheets that allow all employees to make these reports of extra work hours with each pay period. If the employee is prompted to report “extra” work on a weekly timesheet and fails to do so, it becomes much harder on the employee to later claim that they did not understand or know the process for reporting additional work hours.
Third and lastly, the Field Bulletin highlights this concept of a “reasonable method” to report work hours. While the methods may vary, depending on the employee classification, the DOL expects employers to have “reasonable process” for reporting hours, to clearly explain to employees how to report work hours, and not interfere or somehow discourage employees from reporting their full hours of work. At Poricanin, we have been involved in countless investigations, audits and lawsuits where workers claim not to understand the process for reporting work hours. Plainly written and user-friendly policies issued and explained at the outset of employment and reinforced during in-service can go a long way towards meeting employers’ obligations to prove that they established clear and reasonable processes for employees to report their work time.
The above suggestions should be incorporated in home care providers’ payroll practices and time keeping/reporting systems for caregivers, but also any other non-exempt workers who may be teleworking. If Poricanin can provide any assistance in this regard (e.g., auditing and repairing current payroll practices, drafting policies regarding wage and hour compliance, and providing training to office staff that is tasked with monitoring timekeeping), please let us know.