Transitioning a large segment of your workforce to telework is challenging, particularly under stressful times. For businesses that have been forced to close due to Coronavirus (COVID-19), there are even more employment matters to consider.
Not surprisingly, wage and hour requirements are a top concern for both employers and employees. To help employers maintain compliance with the Fair Labor Standards Act (FLSA), the Department of Labor has posted answers to several frequently asked questions (FAQs). Below is a brief summary.
Remote Working Wage and Hour FAQs
May an employer encourage or require employees to telework as an infection control strategy?
Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, based on timely information from public health authorities about pandemics, public health emergencies, or other similar conditions. Telework also may be a reasonable accommodation. However, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by anti-discrimination laws, such as the Americans With Disabilities Act (ADA).
Do employers have to pay employees their same hourly rate or salary if they work at home?
If telework is being provided as a reasonable accommodation for a qualified individual with a disability, or if required by a union or employment contract, then you must pay the same hourly rate or salary. Otherwise, FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. However, the FLSA requires employers to pay non-exempt workers at least the minimum wage for all hours worked, and at least time and one half 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 in which they perform any work, subject to certain very limited exceptions.
The DOL encourages employers 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.
In the event that an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?
Under the FLSA, employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office. Salaried exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. When not all employees can work from home, we encourage you to consider additional options to promote social distancing, such as staggered work shifts.
Are businesses and other employers required to cover any additional costs that employees may incur if they work from home (internet access, computer, additional phone line, increased use of electricity, etc.)?
Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for such items if doing so reduces the employee's earnings below the required minimum wage or overtime compensation. Such items would then be considered business expenses of the employer. Employers may also 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 ADA.
Business Closure Wage and Hour FAQs
How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s closed business?
The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.
If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic, or other public health emergency, does this impact the employee’s exempt status?
The FLSA does not require employer-provided vacation time. Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on a specific day(s). Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt salaried employees are not required to be paid their salary in weeks in which they perform no work.
Therefore, a private employer may direct exempt staff to take vacation or debit their leave bank account in the case of an office closure, whether for a full or partial day, provided the employees receive in payment an amount equal to their guaranteed salary. In the same scenario, an exempt employee who has no accrued benefits in the leave bank account, or has limited accrued leave and the reduction would result in a negative balance in the leave bank account, still must receive the employee’s guaranteed salary for any absence(s) occasioned by the office closure in order to remain exempt. For more information, see WHD Opinion Letter FLSA2005-41.
Volunteer Worker Wage and Hour FAQs
If a business has a shortage of workers, can it look to “volunteers” to help out?
The FLSA has stringent requirements with respect to the use of volunteers. In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.
If individuals volunteer to a public agency, are they entitled to compensation?
Individuals who volunteer their services to a public agency (such as a state, parish, city or county government) in an emergency capacity are not considered employees due compensation under the FLSA if they: perform such services for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation (the volunteer performing such service may, however, be paid expenses, reasonable benefits or a nominal fee to perform such services); offer their services freely and without coercion, direct or implied; and are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.
If individuals volunteer to a private, not-for-profit organization, are they entitled to compensation?
Individuals who volunteer their services in an emergency relief capacity to private not-for-profit organizations for civic, religious or humanitarian objectives, without contemplation or receipt of compensation, are not considered employees due compensation under the FLSA. However, employees of such organizations may not volunteer to perform on an uncompensated basis the same services they are employed to perform.
Where employers are requested to furnish their services, including their employees, in emergency circumstances under Federal, state or local general police powers, the employer’s employees will be considered employees of the government while rendering such services. No hours spent on the disaster relief services are counted as hours worked for the employer under the FLSA.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.