Murchison & Cumming LLP

Employers, Be Aware Of These Wage And Hour Issues During The COVID-19 Pandemic

May 5, 2020

By: Anton N. Handal

Employers will undoubtedly see an uptick in wage and hour claims particularly since Employees have been deployed to working from home. Under the Fair Labor Standards Act (FSLA), and its state equivalents, Employers are required to pay non-salaried workers a minimum wage for every hour they work, and extra when they work 40 hours or more.

As Employees move to telework because of the coronavirus pandemic, an Employer's ability to monitor and account for work hours becomes more difficult. It is not hard to imagine that Employees would claim they spent more than 8 hours a day or 40 hours a week working from home. Employers normally have several tracking mechanisms to monitor when Employees start work, take breaks, take a lunch and end work, however, because of the abrupt shift to telework, businesses may not have adapted with tools that track workers' hours or verify that they are taking breaks. Indeed, how can an Employer confirm that an hourly Employee is taking a required break. Does every trip to the refrigerator count?

If an Employer contests and refuses to pay overtime, or fails to enforce lunch breaks, an Employee's recourse may be to call a lawyer. Such wage and hour claims may lead to costly class action litigation against Employers with many telework Employees who claim that they have been shorted pay for hours of work each week.

Aside from wage and hour issues, Employers face other potential pitfalls including whether the work requires an Employee to use equipment, such as computers or modems, or use their personal communication devices for work. An Employer may be on the hook if an Employee purchases equipment deemed necessary to perform the work or uses a personal phone. Employers should be careful to set clear guidelines for teleworking employees since the FLSA requires businesses to reimburse workers when their expenses tied to work, pushes their pay below minimum wage.

As stay-at-home orders are lifted, Employers may see less productivity as Employees return to the workplace, if they require Employees to take certain measures before returning to the office. In particular, wage laws generally require businesses to compensate workers for any time spent waiting for temperature checks or to clean personal protective equipment. In addition, the time workers spend going to the doctor for health checks in order to be cleared to come back to work, may mean they are under an Employer's control entitling them to compensation.

The nuances of dealing with non-salaried Employees can be a minefield for Employers. Accordingly, as with everything else, businesses should consult with qualified wage and hour experts as they wade the muddy waters of maintaining operations in these times.

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