DOL Answers Questions on FLSA Compliance During the Coronavirus Pandemic

Pay rules under the Fair Labor Standards Act apply and include teleworkers

Stephen Miller, CEBS By Stephen Miller, CEBS March 17, 2020
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teleworking from home

The U.S. Department of Labor's (DOL's) Wage and Hour Division posted a new set of FAQs March 9, addressing wage and hour issues for employers affected by COVID-19, the disease caused by the spreading coronavirus.

The new FAQs clarify employers' responsibilities under the federal Fair Labor Standards Act (FLSA), and address pay issues regarding teleworkers. 

While the guidance breaks no new ground, it serves as a reminder of employers' obligations to workers, whether or not those workers are exempt from mandatory pay for overtime hours worked.

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Coronavirus and COVID-19

Pay for Teleworkers

Employers may encourage or require employees to telework as a prevention or an infection-control strategy, based on information from public health authorities, the guidance states.

Regarding workers without a union agreement or other employment contracts, "under the FLSA, employers generally have to pay employees only for the hours they actually work, whether at home or at the employer's office," the DOL said.

Pandemic or not, don't forget these stipulations:

  • The FLSA requires employers to pay nonexempt workers at least the minimum wage for all hours worked and at least 1 1/2 times the regular rate of pay for hours worked in excess of 40 in a workweek.
  • Salaried, exempt employees generally must receive their full salary in any week when they perform any work, subject to certain very limited exceptions.

The pandemic is not an excuse for not abiding by minimum-wage rules, the DOL admonished, as "employers must pay at least the minimum wage for all hours worked."

When employees' jobs can't be performed from home, the DOL is encouraging businesses "to consider additional options to promote social distancing, such as staggered work shifts."

Employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the Equal Employment Opportunity laws, the guidance states. Employers are advised to check the U.S. Equal Employment Opportunity Commission's Web page Work at Home/Telework as a Reasonable Accommodation.

Reimbursing Teleworkers' Expenses

Some employers are paying business expenses related to telework, such as for Internet access, new computers, additional phone lines or even teleworkers' increased electricity use. Regarding these costs, the DOL said that "employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items that are business expenses if doing so reduces the employee's earnings below the required minimum wage or overtime compensation."

Nonexempt employees must receive the required minimum wage and overtime pay "free and clear."

In addition, employers may not require employees to pay or reimburse the employer for such items "if telework is being provided to a qualified individual with a disability as a reasonable accommodation under the Americans with Disabilities Act."

Tracking Teleworkers' Hours

Employers must keep an accurate record of hours worked for all employees, "including those participating in telework or other flexible work arrangements," and pay no less than the minimum wage for all hours worked, plus any required overtime pay, when nonexempt employees work over 40 hours in a workweek.

"Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee's hours of work," according to the DOL.

[SHRM members-only toolkit: Understanding Overtime Exemptions Under the FLSA]

OSHA Requirements

The Department of Labor's Occupational Safety and Health Administration (OSHA) does not hold employers liable for nor expect employers to inspect their employees' home offices. However, "employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records for injuries and illnesses occurring in a home office," the guidance states.

State and Local Wage Laws

If state or local laws regulating the payment of wages also apply, "nothing in the FLSA or its regulations or interpretations overrides or nullifies any higher standards provided by such other laws or authority," the guidance reminds employers.

When employers are covered by both federal and state or local wage laws, "the law that's most favorable to the employee must be followed," noted Aaron Goldstein, a partner in the Seattle office of law firm Dorsey. Beware of any local predictable-scheduling laws that may require employers to post work schedules days or weeks in advance, he noted, as these ordinances can require businesses to respect employees' rights to decline hours not originally posted, such as when shifts are combined, and to pay for at least some of the hours not worked when an employee is sent home early from a shift or is scheduled for an on-call shift but not called in.

Using Paid-Time-Off Benefits

The DOL "encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees."

The FLSA does not regulate policies regarding paid time off (PTO), noted Al Robinson, an attorney in the Washington, D.C., office of law firm Ogletree Deakins. However, he advised, "if employees are told not to come in, think about substituting PTO for missed work or compensating them under a wage-continuation plan."

Employers, Robinson said, "can require employees to use time that they may have under PTO policies to get paid while they can't come to work, have been instructed not to come to work, or if there is a lack of work for them because of supply or product shortages."

If employees exhaust their PTO, "you can allow them to run a negative balance and replenish the negative balance on that borrowed PTO when they return to work," he advised.

Related SHRM Articles:

Most Companies Leaving Pay Programs Alone for NowSHRM Online, March 2020

Employers Advised to Ponder Worst-Case Scenarios, SHRM Online, March 2020

Hourly Workers Lose Pay Due to Coronavirus, SHRM Online, March 2020

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