Tense Times for FLSA Compliance in a World of Instant Telework

Addington Law

Clients want answers. I am getting overrun with inquiries from clients, some highly concerned, about what they should do, or can do, about their non-exempt work forces during the pandemic. Employers want to make sure these employees are properly paid, but at the same time remain compliant with the Fair Labor Standards Act.

Remember the fundamentals, employees must receive at least the applicable minimum wage (in Florida, $8.56 per hour) for all hours worked and then must receive overtime for all hours exceeding forty (40) in a work week. However, also remember that employees are not guaranteed that forty-hour work week. Clearly, this has become the new normal for businesses throughout this nation.

Employers may cut non-exempt employee scheduled hours due to closings of their businesses or the (severely) reduced demand that this pandemic has caused. However, remember that in some states like New York, should an employer direct its employees to report to work and then send them home quickly, the employer will, be on the hook for some hours of reporting pay or show-up pay.

Many clients have employees working from home, i.e. telecommuting, for the first time. For exempt workers, this situation is not as complex, but when non-exempt employees work from home, there are several issues that arise and must be dealt with. Employers must accurately monitor and record the working hours of such employees, as these situations present the great potential for abuse, e.g. padding hours worked at home.

Employers might want to have employees call in when they begin work, take lunch and end their shift or record their time electronically. They might want to have them record their time by hand and then submit that time on a daily basis. Whatever method is chosen, the employer must remind employees of the need to accurately record all working time and ensure that they record when they take lunch and breaks so the working hours are not needlessly inflated.

It is also very important that supervisors not contact non-exempt employees after regular hours or encourage any work to be performed outside the normal shifts of the workers. That will be deemed compensable working time and if that extra work takes them above forty hours in that week, it is then compensable as overtime. Even reading/responding to an email (or emails) will be working time and, if more than a minute or two (e.g. de minimis), these minutes will add to the weekly total.

To avoid FLSA issues, employers must be proactive. Promptly adopt or reinforce a policy forbidding working overtime without direction or authorization. The employee-working-at home scenario is dangerous from the perspective that it lends itself to abuse of overtime, without appropriate safeguards. I suggest paying an employee, the first time, for engaging in unauthorized overtime, so as to avoid a complaint to a Department of Labor, but at the same time warning that employee that this is not authorized and future instances of unauthorized overtime may lead to discipline for any violations.

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