Question: When an hourly employee works from home and the beginning of a shift begins upon the receipt of a generated report, may we state the employee is not to work until such time that the report is distributed via email?
Answer: You may certainly put such restrictions in place and hold an employee accountable with progressive disciplinary action if and when an employee works outside of the normally scheduled workday without prior authorization; but you may not do so unless such policies are in place within your organization. An organization is still required to pay for any time worked whether approved or not, so implementing such a policy is considered a best practice to protect the company and guide employees. When an employee working from home is required to wait to start a shift based on distribution of a report, and that report is not distributed on a timely basis, a company may be held liable for compensating an employee who is willing and able to work if the employee is required to be on standby until such time that the report is distributed. Under this scenario a suggested approach would be to advise employees when a distribution is delayed that the employee will receive notification via phone or text once the report is distributed and is expected to clock in within 30 minutes (or another specified time) to begin his or her workday. This removes liability for implying an employee remain on standby until such time that he or she may start work due to an unforeseen delay. Below are extracts from the Department of Labor Fact Sheet #22 to provide further clarity:
By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday,” in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.
Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”
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