DOL to Seek Comments on Virtual Work

Employee Relations, Employment Law

In addition to narrowing the FLSA overtime exemptions, the Labor Department intends to examine "the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours."  The Department's new regulatory agenda indicates the Wage and Hour Division will publish a request for information in August on the "Hours Worked Under the Fair Labor Standards Act," seeking comments from stakeholders.  The request for information is very timely and the issue is well worth exploring, so HR Policy will participate.  Modern information technology offers many in the workforce the ability to meet their family needs, attend school events, or make appointments during the day, knowing they can monitor email while out of the office or log on later to catch up with work if needed.  A Gallup poll in 2014 showed that "full-time U.S. employees are upbeat about using their computers and mobile devices to stay connected to the workplace outside of their normal working hours.  Nearly eight in ten (79%) workers view this as a somewhat or strongly positive development."  Yet, the FLSA deters, and often prevents, an employer from providing this flexibility to nonexempt employees by requiring employers to track all "hours worked" (or portions of varying lengths thereof), which poses a challenge for employers if the employees wish to perform some or all of their duties away from the workplace.  Meanwhile, employers' ability to provide this flexibility will be further hampered by the DOL's efforts to shrink the number of exempt workers by raising the minimum salary for the exemptions (see separate story).  Once the Department reviews the information gathered from stakeholders, it will consider issuing a proposed rule on this issue.