Revisit Wage and Hour Policies During the Pandemic

Allen Smith, J.D. By Allen Smith, J.D. June 25, 2020
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telecommuter working at her desk

​The coronavirus pandemic has shifted some employees to remote work permanently while others are telecommuting more frequently. Employers' wage and hour policies and enforcement should account for the rise in telework.

"When nonexempt employees were only working from a physical worksite, employers could more easily have protocols in place, such as punch clocks and managers' physical observations, and could more easily enforce those protocols to help them track when a nonexempt employee was working," said Renee Inomata and Stéphanie Smith, attorneys with Casner & Edwards in Boston. "As a result, employers were better able to manage hours worked, including overtime hours [and] break times."

In response to the pandemic, employers can amend current policies or provide an addendum that supplements current policies for a specified duration, such as "until further notice," said Marlene Williams, an attorney with Eversheds Sutherland in Houston. "The policies should address expectations regarding schedules, timekeeping responsibilities to manage overtime and labor costs, employee responsiveness and availability during normal workhours, and performance management expectations," she said.

However, some may choose not to specifically address COVID-19 in handbooks or policies. Jennifer Shaw, an attorney with Shaw Law Group in Sacramento, Calif., noted that "the rules are changing so quickly, it's hard to keep up." But she added that it can be helpful for employers to clarify that there are unique policies related to COVID-19 that won't be in effect outside of COVID-19, such as permitting employees to telecommute during the pandemic even if they aren't able to perform all essential job functions from home.

Moreover, Williams noted, "Many employers do not have formal policies related to remote working arrangements or their policies are not comprehensive enough to cover all the long-term considerations at play during an extended remote work arrangement."

SHRM Resource Spotlight
Coronavirus and COVID-19

Schedules

During remote work arrangements, employers will need to be especially vigilant about managing timekeeping policies and rules to ensure nonexempt employees are properly documenting their workhours and working only when scheduled, Williams said.

Let nonexempt employees know what the expectations are about obtaining prior approval for any overtime work or work outside their normal schedule.

"Even if employees do not get such preapproval, they should still be paid for the overtime worked," said Fanny Ferdman, an attorney with BakerHostetler in New York City. "This need not be underscored in the policy itself, but employers should be aware of this requirement to avoid claims for unpaid wages or overtime.

"Policies should also clearly state that refusing to report time accurately, or otherwise altering, falsifying or tampering with time records, is prohibited and subjects employees to discipline, up to and including discharge," she added.

Avoiding Off-the-Clock Work

Regularly remind nonexempt teleworkers about recording all their worktime and not working off the clock , Shaw said.

"Nonexempt employees should be held to a set schedule while they are teleworking just as they are when they work onsite," she said. That includes taking any required meal and rest breaks, she added."[Remote work] policies should instruct [nonexempt] workers in no uncertain terms that they are not to work off the clock and that if they do, they must immediately report that work to their supervisor," said Steven Suflas, an attorney with Ballard Spahr in Denver and Cherry Hill, N.J. "For exempt employees, there is less of a problem, but employers need to make sure that they continue to meet all of the tests for the exemption, especially if their work tasks change while at home."

Williams said that if an exempt employee is furloughed—either for a specific period or under a week-on/week-off arrangement—the employer must be sure the worker is not working during the furlough period or else the employee will be entitled to compensation.

"Ensure that employees understand that time spent checking e-mails is compensable," said Ellen Bronchetti, an attorney with McDermott Will & Emery in San Francisco. "Employers should conduct periodic audits to ensure employees are not checking e-mails off the clock."

"While de minimis time responding to discrete messages may not be compensable, regular interruptions can add up and turn out to be time that has to be paid to the employee," Williams said.

Consider requesting supervisors regularly certify that they did not call, text or e-mail a nonexempt employee outside workhours, Bronchetti said.

Nonexempt employees should add to their out-of-office messages that they will not respond to e-mails until they return to work the next day, Suflas said. This reduces the chance that a supervisor will send them e-mails off hours, making them feel obligated to work overtime.

Reimbursing Employees

In some states, such as in California, employers must reimburse employees for reasonable and necessary expenses.

This "can be difficult to determine for teleworkers," Shaw said.

"The best practice in this situation generally is to pay a stipend for those expenses and not require documentation unless the employee claims the stipend does not sufficiently reimburse [him or her] for the work-related expenses," she said.

[SHRM members-only toolkit: Complying with U.S. Wage and Hour Laws and Wage Payment Laws]

Policies for Employees Working Onsite

Wage and hour policies for those working onsite must be vetted too.

"Consider paying employees for pre-shift temperature checks and time spent waiting in line while waiting for a temperature check to be completed," Bronchetti said.

Pay attention to state law requirements as well, particularly California requirements.

"For example, reporting-time pay requirements come up in California when employers require employees to take their temperatures and/or complete a symptom checklist before reporting to work," Shaw said. "If the employee is unable to come to work, the employer likely will be on the hook for paying for one-half of the employee's scheduled hours."

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