Posted April 22nd, 2021.
By Daniela Porat
As more employees get COVID-19 vaccines and employers contemplate whether they want their workforces at home, in the office or a hybrid of both, employers should ensure their workers get paid properly under any setup by implementing protocols such as remote work stipends or digital health screenings, attorneys told Law360.
Here are four tips that can help employers avoid wage and hour pitfalls as vaccinations continue to rise.
Make Sure No Remote Hours Are Off-the-Clock
Employers should ensure that leadership is trained to manage home-based employees who are not not exempt from overtime, according to Randi May, a management-side partner at Hoguet Newman Regal & Kenney LLP. When those lines are blurred, she said, there is a risk of employees doing a lot of off-the-clock work.
“When you have nonexempt employees working from home, a lot of us are workaholics and there’s no real start or end to the day,” she said.
Management should verify whether an employee has accurately recorded their hours and follow up if there is a possible discrepancy. For example, if a manager knows that her employee worked an hour more than what was recorded, the manager should follow up and make sure the employee is paid for all hours worked, May said.
“It’s really important to have good timekeeping records,” she said. “Those time records are really the only way that the employer can rebut the presumption that the employee is telling the truth and that they worked this excess amount of hours per week.”
Reduce Time Spent On Health Screenings
Employers preparing to bring workers back to the physical workplace should consider implementing strategies to reduce time employees might spend undergoing health checks or waiting for uncrowded elevators — time employers might have to pay for.
“The most important wage and hour issue for when people come back is going to be the additional time spent, if any, getting into the building and waiting on lines or spacing out for elevators,” May said. “It could add up.”
Michael Palmer, co-chair of worker-side firm Sanford Heisler Sharp LLP’s wage and hour practice, said that while the law on this issue is less clear outside the Golden State, he strongly recommends any employer in California that is requiring “an employee go through a health check to make sure that that employee is compensated for the time waiting and actually being checked.”
Whether this time is compensable is currently being litigated in cases in California involving Victoria’s Secret and Walmart, which faces a similar case in Arizona as well.
Given the potential high cost of litigation an employer could face, however, Celena Mayo, a partner at management-side firm Wilson Elser Moskowitz Edelman & Dicker LLP, recommends employers consider that time ostensibly compensable and take steps to reduce it.
“Having an employee population that is free from COVID is arguably necessary for work,” she said.
One way to cut waiting time would be for employers to use digital health questionnaires that employees can fill out on their own, Mayo said.
Another benefit to reducing or eliminating long lines for health screenings: Employers avoid the risk of inadvertently disclosing confidential medical information in the event a worker in line doesn’t pass the screening and must go home, Mayo said.
May, the attorney from Hoguet Newman, also said employers could stagger work schedules, but that recommendation has benefits beyond just avoiding potential wage and hour violations.
“I think it might be a good practice anyway just to cut down on frustration and to cut down on anxiety that people might have of being in close proximity with one another,” May said.
Consider a Remote Work Stipend
If employers make remote work permanent, they need to be aware of the full cost associated with employees making their homes into workplaces.
Palmer said that while employers are becoming more aware of the emotional impact of working from home, they also need to take note of the financial impact.
“In general, the idea should be that employees at the end of the day are treated the same,” he said. “It should be that the employee who works in the office is in a similar place to the employee who works from home.”
To that end, Palmer suggested that employers consider providing remote workers a monthly stipend to cover certain costs, such as better internet or the increased use of utilities during the day, in addition to reimbursing employees for expenses like paper and other office products.
The U.S. Department of Labor has said employers are not explicitly required to pay for business expenses under the Fair Labor Standards Act unless those costs would reduce the worker’s effective pay rate below the federal minimum wage of $7.25.
State requirements can be stricter, however. California and Illinois both mandate that businesses pay employees back for certain expenditures.
Palmer said that in California, an employer can be on the hook for paying part of an expense even if the employee would have incurred that cost anyway, such as with a cellphone plan, because the employer is reaping the benefit of that expense.
Although employees are spending more on certain items while working from home, they are also saving on others, like commuting expenses, May said.
“It’s almost a wash,” she said. “Certain things are the cost of doing business.”
But, if an employer is mandating that employees work from home instead of offering remote work as a choice, a stipend might be more justified, she said.
“I think there’s a more compelling argument to provide a stipend for certain things that make what is now their workplace tolerable and comfortable,” she said.
Make Sure Your Employees Are Resting and Eating
With workday start and end times blurred for home-based employees, the lines between work time and break time have also been muddied. But employers need to make sure their nonexempt workers are taking their rest and meal breaks.
Amy Morrissey Turk, a partner at management-side firm McGuireWoods LLP, said employers need to be “vigilant in how they are enforcing their meal and rest break requirements.”
Supervisors should reiterate meal and rest break policies with their employees on a continuous basis.
The added flexibility of work-from-home arrangements means employers need to make sure that employees are not just taking their breaks but, in some states like New York and California, taking them in accordance with laws that mandate breaks at specific intervals in a shift, Turk said.
One way to approach meal and rest break requirements under those circumstances would be to enforce set schedules, Turk said.
Each post-vaccine work arrangement yields its own challenges.
But, “at the end of the day,” said Palmer of Sanford Heisler, “the focus should be on employees in both situations being fully compensated for their time and reimbursed for any business expenses.”
— Additional reporting by Mike LaSusa. Editing by Abbie Sarfo.