hourglass-small.jpg This blog post was authored by Alex Polishuk.

In today’s technological world, a rising number of employees telecommute, e.g. work from home.  Employers who allow non-exempt employees to telecommute must remain mindful of their obligation under the Fair Labor Standards Act (“FLSA”) to track the hours worked by a non-exempt telecommuting employee.  A recent 11th Circuit Court of Appeals decision demonstrates that although non-exempt employees who telecommute are required to track their own work hours, employers must provide these employees with timesheets or an alternative method to track their time and the nature of the work completed.

Under the FLSA, a non-exempt employee who brings a claim for unpaid overtime wages must demonstrate that he or she performed work for which he or she was not properly compensated. The FLSA provides that it is the employer’s duty to keep records of the wages, hours, and other conditions and practices of employment.  Where the employer cannot or fails to keep these records, an employee satisfies a relaxed standard of proof by showing the amount and extent of the work performed with evidence of  “just and reasonable inference.” The 11th Circuit Court of Appeals decision, Jackson v. Corrections Corporation of America, explains that where a non-exempt employee is allowed to work from home, and the employer cannot practically track the employee’s hours worked, the responsibility for accurate timekeeping falls on the employee. An employee who fails to accurately track the time worked and the nature of work performed may be precluded from asserting an FLSA claim.  However, the Court also suggested that the employer is responsible for providing the employee timesheets or other methods to allow the non-exempt employee to track the hours worked.

In Jackson, the plaintiff, Verneisa Jackson, worked as a librarian aide when she developed irritable bowel syndrome.  She requested to work from home more often and her employer, Corrections Corporation of America (“CCA”), approved a modified work schedule.  CCA provided Jackson with timesheets and instructed her to keep a log of hours worked and tasks completed.   When she was passed over for a promotion and returned to a normal work schedule, Jackson retired and then sued CCA under the FLSA for allegedly failing to compensate her for hours worked at home.  The trial court granted CCA’s motion for summary judgment against Jackson’s FLSA claim on the grounds that Jackson failed to “track and log her time accurately” while working from home.  The 11th Circuit Court of Appeals affirmed the trial court’s ruling.

In its decision, the Court of Appeals emphasized that Jackson failed to meet even the relaxed burden of “produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”  The Court indicated that Jackson’s failure to complete the timesheets that CCA provided her and state with any clarity or precision the number of hours she allegedly worked at home, the nature of the work, where or when the work was completed or anything else that would assist a factfinder in approximating Jackson’s unpaid overtime was fatally detrimental to her claim.  Resultantly, the Court of Appeal ruled that Jackson failed to create a genuine issue of material fact about whether she performed work for which she was not paid.

While the 11th Circuit Court of Appeals faulted the employee for not completing the employer’s timesheets, the case could have easily gone against the employer if the employee were able to provide evidence such as: witness testimony regarding uncompensated time worked, testimony regarding the employer’s practice of maintaining inaccurate or no time records at all, or the employee’s informal records of uncompensated time worked.  Moreover, in this case, the employer’s failure to maintain records of employee work hours likely violated the FLSA’s recordkeeping requirements.  This case is a good reminder to employers that while it is an operational and modern day reality that non-exempt employees may work remotely while out in the field or from home, these situations can also expose the employer to significant potential FLSA liability if left unmonitored.  With all non-exempt employees, but with those who work remotely in particular, it is essential that the employer require the employees to complete and submit timely and accurate time records of the employee’s actual hours worked, and not simply the employee’s scheduled work hours.  The employer should also have and enforce a detailed and strongly worded overtime policy.  Finally, employers should be strategic in determining which employees should be allowed to telecommute or have remote access to the agency’s email or computer network at all.  Making sure the proper procedures and policies in place now will help your agency save “time” and money later on.

The full text of the Jackson v. Corrections Corporation of America decision can be found here.