The New Normal – Remote work in the Covid-19 Era and Beyond By Gina Loredo, Esq.
Despite these benefits, this mass transition to remote work has given rise to a lot of grey areas and questions for employers to tackle. Effective time-keeping and management of remote workers while keeping them engaged and productive is a pervasive area of concern among employers. Although time-keeping issues are most relevant to non-exempt employees, who under federal law must be paid minimum wage plus overtime if they work more than 40 hours a week, employers still have to worry about time-keeping for their exempt employees for practical financial and business reasons.
On August 24, 2020, the U.S. Department of Labor’s Wage and Hour Division released the Field Assistance Bulletin No. 2020-5 providing guidance as to employers’ obligations under the FLSA to track the number of hours of compensable work being performed by employees who are working remotely. Challenges arise in situations where non-exempt employees perform work that was not scheduled. “An employer is required to pay its employees for all hours worked, including work not requested but suffered or permitted, including work performed at home.” See. 29 C.F.R. § 785.11-12. Employers must count additional unscheduled hours worked by their employees if they know or have reason to know that such work is being performed. The court’s standard when it comes to determining whether an employer had actual or constructive knowledge of these hours is whether the employer should have acquired such knowledge through reasonable diligence. See Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018). “Reasonable diligence” is determined in light of circumstances surrounding an employer’s business but generally it is a standard that can simply be met by an employer providing its employees with a clear procedure for reporting hours worked. Once that time-keeping procedure is implemented, discussed, and understood by the employees, the employer is not required to go to impractical lengths to investigate further and uncover unreported hours by an employee. Employers can mitigate their FLSA risk exposure by performing wage and hour audits to verify whether their employees have been properly paid.
Employers do not need to be concerned about FLSA claims when it comes to their exempt employees, since they are not covered by the FLSA. Nevertheless, management, time-keeping, and productivity are all issues that are at the forefront of an employer’s concerns. Lack of supervision in addition to the realities of complicated schedules due to challenges brought on by the pandemic such as working while taking care of children and/or sharing a workspace with spouses, partners, or roommates, sometimes resulting in employees working odd hours are just some of the issues employers have been trying to navigate. There is also a balance to be struck, as it is important for employers to keep in mind that regular micromanagement of exempt employees could threaten their exempt status, and entitle them to overtime pay because it can be viewed as denying them the ability to exercise the discretion and independent judgment required for such classification.
In order for employers to avoid potential issues surrounding productivity and management, it is crucial for them to clearly communicate work expectations, deadlines and reiterate standard work policies that remain in effect regardless of the location the employee is working from. Frequent check-ins from management and employee recognition for goals achieved and contributions are simple things for employers to incorporate that have a significant impact on productivity and employee satisfaction.
Another important thing for employers to keep in mind is compliance with the posting of required notices in the workplace. released guidance on that matter. The Field Assistance Bulletin No. 2020-7 released by the U.S. Department of Labor’s Wage and Hour Division on December 23, 2020, clarified that certain electronic notices comply with the notice requirements under the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), Section 14(c) of the FLSA (Section 14(c)), the Employee Polygraph Protection Act (EPPA), and the Service Contract Act (SCA).
Whether notices are provided electronically or in hard-copy format, it is an employer’s obligation to provide the required notices to all affected individuals. Several of the aforementioned federal laws require employers to continuously keep these notices posted in the workplace. In order to comply with the continuous posting requirement in an electronic format, all of the employer’s employees must exclusively work remotely, customarily receive information from the employer via electronic means, and have readily available access to the electronic posting at all times. In cases where an employer has a mix of on-site and fully remote employees the employer can supplement a hard-copy posting with an electronic posting. The key consideration for employers to be aware of is that an employee is able to readily access and see the required posting. If an employee has to request access to see the posting, or if an employer has not properly informed employees of where and how to access the notice electronically, the notice requirement has not been complied with.
As remote work continues to remain pervasive in the workforce, there will surely be new guidance and legislation to address evolving questions and concerns. Our firm is here to help with your employment law matters as well as any corporate, commercial, or family law issues. We offer both in-person and virtual consults, please feel free to call our office at 305-460-0145 to schedule a consultation or click here.