On Monday, July 20, 2020, the U.S. Department of Labor published additional guidance, addressing questions arising from the COVID-19 pandemic under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Families First Coronavirus Response Act (“FFCRA”).
In this post, we highlight some of the guidance relating to wage and hour issues, and management of a remote workforce.
This guidance is particularly apropos, as more and more employers realize that the “new normal” is a world of remote work, with some employers extending telework on an indefinite basis.
Here are some interesting questions the DOL answered and our take-aways from the guidance.
What are some federal employment laws I need to consider when it comes to my employees who are teleworking?
The DOL makes clear that the employment laws which apply to the office, including the FLSA, the Americans with Disabilities Act (“ADA”), and the Occupational Safety and Health Act (“OSHA”), are equally applicable to employees working remotely.
- Keep accurate wage and hour records. Under the FLSA, employers are still required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements, and to pay at least one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek to non-exempt employees.
- What about work equipment? In most states, if a covered employee is required to provide the equipment necessary to carry out his or her job duties (e.g., computer, internet connection, etc.), the employer is not required to pay for the equipment. However, the cost of providing the equipment may not reduce the employee’s pay below that required by the FLSA.
- Set work hours. Employees, especially those who are non-exempt, should have set hours while working from home. Employers are encouraged to work with their employees to establish hours of work and a mechanism for recording hours worked.
- When is telework an accommodation? Mandatory telework aside, telework can also be considered a reasonable accommodation under the ADA to a qualified individual with a disability, unless it would cause undue hardship for the employer. On this topic, the DOL directs employers to the U.S. Equal Employment Opportunity Commission’s publication, Work at Home/Telework as a Reasonable Accommodation, for additional information.
- Does OSHA apply to the home office? According to the DOL, while OSHA does not have any regulations regarding telework in home offices, employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for doing so for injuries and illnesses occurring in a home office.
(DOL Guidance, Q. 12).
Can I provide my non-exempt employees who are teleworking flexible work hours, so they can take time out of the normal workday for personal and family obligations?
The DOL guidance indicates that yes, you can provide non-exempt employees with more flexible work hours. Indeed, an employee with more flexible hours may also be more productive during their actual hours worked.
However, we add that unless the employee has a disability, you are not required to provide flexible hours. If you provide flexible hours to one employee, make sure that you are consistent and provide that same flexibility to others in that job title.
If I provide more flexible work hours, am I required to compensate them for all hours between starting work and finishing work?
No. Generally, all time between the performance of the first and last principal activities of a workday is compensable worktime. However, employers are not required to compensate non-exempt employees teleworking for all hours between starting work and finishing work.
For example, if an employer and employee agree to a telework schedule of 7-9 a.m., 11:30 a.m.-3 p.m., and 7-9 p.m., the employer must compensate its employee for 7.5 hours, not all 14 hours between the first principal activity at 7 a.m. and the last at 9 p.m.
We note that many employers find it easier to keep nonexempt employees on a set schedule, which coincides with the schedule of the rest of the office or management, because flexible hours can be hard to manage.
(DOL Guidance, Q. 15).
Do I have to pay my employees for hours I did not authorize them to work?
The DOL says yes, you must compensate your employee for all hours of telework actually performed. This is true even if the hours worked were not authorized.
We acknowledge this is a challenge for employers. It is lawful to have a policy that says overtime must be authorized, however, if the employee worked overtime without prior authorization, you must pay them for it. Employers may, however, discipline the employee for working overtime without authorization to prevent this from happening again.
Do I have to pay my employees for hours worked even when they do not report those hours?
According to the DOL, you are not required to compensate your employees for unreported hours of telework that you have no reason to believe had been performed (i.e., where you neither knew nor should have known about the unreported hours).
In most cases, you may satisfy your obligation to compensate your teleworking employee by providing reasonable time-reporting procedures, and compensating that employee for all reported hours.
(DOL Guidance, Q. 14).
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Of course, these are only a few of the myriad of issues that our clients with telework arrangements must consider. Contact a Kelley Drye attorney for additional guidance and counsel.
For the complete DOL publication, click here.