With the slow pace of the COVID-19 vaccine rollout and the emergence of at least three more rapidly spreading variants, remote workforces are likely to continue well into 2021. Whether an hourly worker has been working from home since the start of the pandemic or just transitioned this month, employers need to remember that federal wage and hour laws apply to remote work as well. Employers also need to be aware of temporary provisions related to hourly workers telecommuting due to the COVID-19 pandemic.
Generally, under the Fair Labor Standards Act, employers must pay workers at least minimum wage for the hours they work up to 40 hours per week, regardless of whether the work is performed in the office or at home. If employees work over 40 hours, they must be paid time and a half. Employees are to be paid for work suffered or permitted. In other words, if an employer has reason to believe an employee was working, even if not requested, the time should be counted as time worked and the employee paid.
Tracking Hours During a Pandemic
Easy enough in an office setting, but how does an employer track those hours, particularly in a pandemic when a worker might be homeschooling during regular business hours and fitting in work assignments between childcare duties? In August 2020, the Department of Labor (DOL) issued Field Assistance Bulletin No. 2020-5 to help clarify the responsibilities of employers and workers regarding recording time. The onus is on the employer to exercise reasonable diligence in tracking teleworking hours, but the key word here is reasonable.
In its bulletin, the DOL suggested that employers implement a work-from-home procedure enabling employees to report all hours worked. including those not requested by the employer. The employer then pays the employee for those reported hours. If the employer has reasonable knowledge that work was performed but not reported, it should pay the employee but doesn't have to go to extremes to find unreported time. For example, the employer doesn't have to track phone records to determine if the employee accurately reported all time. Employers do not have to pay for work they didn't know about and had no reason to know about, according to the DOL.
When implementing a procedure for reporting hours worked, employers might consider encouraging workers to record all start and stop times. Employers might also consider including a provision in a time-reporting policy that stresses employees report all work performed outside the normal workday or work periods, such as via a text or email exchange late at night.
Reaffirmation of Continuous Workday Suspension During Pandemic
Due to temporary regulations set in place last spring, employers do not have to compensate hourly employees working from home for all hours between their first and last activity of a workday. This is a change from the continuous workday guidance provided by the Wage and Hours Division (WHD) in which employees were compensated for the block of time between their first and last activity. The continuous requirement was first suspended as part of the Family First Coronavirus Response Act (FFCRA) of 2020 in situations where employers allow employees to work remotely with flexible hours. The FFCRA provision expired on December 31. At the end of the year, however, WHD reaffirmed the position in Opinion Letter FLSA 2020-19, in which it discussed employee travel and personal time during the workday.
When allowing employees flexible work schedules, employers must compensate employees for all hours worked during a day regardless of how they are broken up. For example, assume an employee starts at 7 a.m. and works until noon, takes a break to teach children between noon and 3 p.m., works again until 5 p.m. then breaks for dinner and finishes up tasks between 7 p.m. and 8 p.m. The employer would pay the worker for the total eight hours worked but not for all the hours between 7 a.m. and 8 p.m.
We at Barrett & Farahany hope you are staying safe and healthy. If you have questions about WHD's guidelines and the ways in which temporary or updated coronavirus regulations apply to employees working from home, please don't hesitate to reach out. One of our experienced attorneys would be happy to help.