How does COVID-19 affect pay while working from home?

Employers need to keep the FLSA in mind while employees work from home.

Posted July 22, 2020

You’ve allowed your employees to telework during the COVID-19 emergency. Now that your employees are no longer at the worksite, ever wonder how you determine their hours of compensable work? Do you have to pay my employees for hours you did not authorize them to work? Do you have to pay them for hours worked even when they do not report those hours?

These and other questions have surfaced during the pandemic. So, let’s get to the answers.

Work performed away from the primary worksite, including work performed at employees’ homes, is treated the same as work performed at the primary worksite for purposes of compensability. Therefore, you must pay your employees for all hours of telework actually performed away from the primary worksite, including overtime work, in accordance with the FLSA, provided that you knew or had reason to believe the work was performed.

This is true even of hours of telework that you did not authorize. You also must pay your employees for unreported hours of telework that you know or have reason to believe had been performed.

You are not, however, required to pay your employees for unreported hours of telework that you have no reason to believe had been performed; i.e., where you neither knew nor should have known about the unreported hours. In most cases, you may satisfy your obligation to pay your teleworking employee by providing reasonable time-reporting procedures and compensating that employee for all reported hours.

Document, document, document!

What if you allow employees to begin work, take several hours in the middle of the workday (for example, to care for their children), and then return to work, do you have to pay them for all of the hours between starting work and finishing work?

No! All time between the performance of the first and last principal activities of a workday is generally paid work time. However, applying this guidance to teleworking arrangements would discourage needed flexibility during the COVID-19 emergency. As such, if you allow employees to telework with flexible hours during the COVID-19 emergency, you need not count as hours worked all the time between an employee’s first and last principal activities in a workday.

If, for example, you and Emma Employee agree to a telework schedule of 7–9 a.m., 11:30–3 p.m., and 7–9 p.m. on weekdays. This allows Emma, for instance, to help care for her children whose summer programs are closed, reserving for work times when there are fewer distractions. Of course, you must compensate Emma for all hours actually worked — 7.5 hours — that day, but not all 14 hours between Emma’s first principal activity at 7 a.m. and last at 9 p.m.

Got other questions? Let us know! Subscribers have the option of posing questions to our regulatory experts on a variety of employment law issues.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.

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