Part I covered the impact of telework on locality pay, and the adverse consequences if the telework site is outside the vicinity of a person’s locality pay. In this part, we will take a look at the potential problems that telework can bring for compliance with the Fair Labor Standards Act (FLSA).
Under the FLSA, agencies must take preventative measures to ensure they do not suffer or permit work during unauthorized time periods, or they could risk huge costs in potential liability under the FLSA.
The telework agreement is the contract between the employee and management. For the privilege of being able to sleep later and to avoid the hassles of clogged highways or trains, the telework agreement should set down the terms and conditions of what is expected from both parties.
Unfortunately, I have never seen a telework agreement that forbids a teleworking employee from working overtime without advanced authorization. The rules of the workplace are no different in a telework environment. Agencies must institute strong internal controls into their telework policies, procedures, and agreements.
A DoD audit agency has a strong internal control whereby overtime or comp time cannot be authorized without a control number from the financial management division. This control number records the accrued liability for overtime or comp time. This is important because comp time for nonexempt employees will be paid out at time-and-a-half if the comp time is not taken within 26 pay periods. This can be critical in the last quarter if your unobligated balance is marginal, and suddenly overtime is paid when management was not fully cognizant that it might occur. The penalties for an Anti-Deficiency can be severe.
In a telework environment FLSA would require you to pay nonexempt employees for all hours of “suffer or permit” work. This includes any work the agency knows or should have known, the employee performed and did not take steps to prevent. For these reasons, I strongly believe all telework agreements must contain language stating that advanced supervisory approval is required for any and all overtime while teleworking.
While its inclusion is not fail-safe or perfect, it would go a long way in defense of a back pay claim for overtime. The risk is greater when it comes to teleworkers because supervisors cannot physically observe when a teleworker is performing work.
Supervisors must ensure that teleworkers, who are classified as FLSA-nonexempt, not be permitted to work during unauthorized time periods, or hours that supervisors did not approve.
Below are some guidelines and internal controls that should be reviewed and followed before a telework arrangement is approved:
- Verify the teleworker’s FLSA exemption status before telework begins.
- A supervisor must scrutinize closely all time cards, especially teleworkers, at the end of each pay period and certify only those that agree with the time and work product expectations.
- Actively manage remote technology use by consistently reminding employees to use these technologies only during authorized hours. This includes smartphones, e-mail, laptops, and remote computing programs.
- Immediately challenge any unauthorized work, including inconsistencies in time sheets.
- Set clear expectations for work progress updates, the daily and weekly schedule, and pre-approval for schedule changes. Is the quality and quantity of work being accomplished in a telework arrangement satisfactory?
- Ensure telework agreements include a provision that specifically states overtime is not permitted or authorized without prior advanced supervisory approval.
Managing telework employees is like the old FRAM oil filter TV commercial: “You can pay me now, or you can pay me later.” Failing the upfront due diligence can, and most likely, will be costly later in the form of a performance, conduct dispute or back pay claim.
In my next installment we will take a look at the impact of inclement weather and local travel from the telework site.
