4 Tips for Allowing Nonexempt Employees to Telecommute

It is widely believed that nonexempt employees shouldn’t be allowed to telecommute because of the fear that nonexempt telecommuters will work overtime. However, Kelly Hughes, an attorney at Ogletree Deakins in Charlotte, N.C., bucks this conventional wisdom in her recent paper published on the Society for Human Resource Management blog, Teleworking and the Nonexempt Worker: Four Tips for Minimizing FLSA [Fair Labor Standards Act] Issues.

Hughes said that when she suggests an organization consider allowing telework for certain nonexempt positions, she often gets pushback.

“How will I know whether these employees are really working?” she is asked.

Her standard response is, “How do you know whether they are working while they are at the office?”

She offers four tips for expanding telework to nonexempt employees:

• Re-evaluate your approach to performance management.

Managers usually don’t stand next to subordinates to ensure they are working all day. Examine what the job entails and whether physical presence is necessary, she recommended.

• Determine whether current time-tracking systems can be accessed remotely.

If employees log in to a particular software program on an employer-provided computer, determine whether the program can be accessed remotely. If not, consider options for remote time-tracking software, she said.

While micromanaging nonexempt telecommuters shouldn’t be necessary, “demanding accurate time-keeping of remote workers is a must,” Tamara Devitt, an attorney with Haynes and Boone in Costa Mesa, Calif., and Palo Alto, Calif., told SHRM Online.

“An employer should audit employee time records regularly to confirm compliance and accuracy and ensure employees are routinely verifying the accuracy of the records,” she said.

• Specifically address overtime expectations.

Hughes noted that to prevent unauthorized overtime, companies should:

• Have a solid overtime policy in place that prohibits working more than 40 hours in a given workweek without advance written authorization.
• Have a written policy that prohibits working off the clock, and underreporting or overreporting hours worked.
• Have employees sign and date the written policies.
• Take remedial action if an employee fails to obtain prior approval for any overtime hours that he or she reports—but still pay the overtime.

Moreover, to minimize overtime, management should not make demands of remote workers during off hours, Devitt said.

• Ensure agreement on what constitutes “hours worked,” and make certain that company policies provide clear guidance to employees.

Employees should understand the expectations associated with tracking their compensable worktime, including that break and meal times must be properly tracked. Usually rest breaks of 20 minutes or less are compensable, while meal breaks of 30 minutes or more are unpaid, as long as no work is performed during that time, Hughes stated.

An employer should have a policy banning any work before or after set times to minimize any temptation by nonexempt workers to perform off-the-clock work, Alfred Robinson, Jr., an attorney at Ogletree Deakins in Washington, D.C., told SHRM Online. And if an employer plans to monitor employees’ use of its equipment, that should be clearly communicated, he added.

“A telecommuting policy should also reinforce any at-will employment relationship and should clarify that the company may revoke it at any time at its sole discretion,” Robinson said. “Monitoring for compliance does not mean micromanaging a telecommuting, nonexempt employee’s daily activities. A telecommuting policy presumes a certain level of trust between the employer and employee, which should be respected unless it is abused or telecommuting becomes viewed as an entitlement.”

Other considerations regarding telecommuting include workers’ compensation and trade secrets. “Employers should also have clear policies regarding timely reporting of workers’ compensation injuries, as well as policies to protect the company’s trade secrets and confidential information,” Devitt explained.

Don’t reject telework for nonexempt employees out of hand, Hughes concluded. Instead, she asserted, it is a feasible option for some nonexempt workers.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.