Working for Justice

Wage and Hour Violations in the Time of Coronavirus

The coronavirus pandemic is changing the face of work. Many employees are working from home, while others are putting in double-time in essential roles. As the economy reopens, employers have implemented and will continue to implement measures designed to limit the spread of Covid-19. At their best, these myriad changes may make employees safer and more efficient in their jobs. However, the new work environment may also result in wage and hour violations. The following are a few violations that workers should look out for as they adjust to their changing workplace:

Off-the-Clock Work

Employers are required to compensate non-exempt employees, including hourly workers, for all work performed.  When one of these employees works without being compensated, she is said to be working “off-the-clock.” Off-the-clock work can lead to violations of minimum wage, overtime, and meal and rest break laws, as well as laws related to the timing of payment and the maintenance of accurate time records. Several Covid-19-related changes may increase the chances of workers being expected to work off-the-clock.

For non-exempt employees who have recently begun working remotely, a substantial amount of communication may occur through phone calls and emails. Generally, this time should be logged and compensated. Additionally, remote workers may find themselves essentially “on call” during hours when they are not being paid – for example, an employee may be asked to ensure that they are available outside of normal hours in case a particular assignment needs to be completed at that time. Depending on how free employees are to use the on-call time for their own purposes, employers may be required to record and compensate the employees for the time.

Changes to conventional physical workplaces are also creating new risks of off-the-clock work. Many employers are screening employees for symptoms or taking their temperatures each day before work begins. Similar to a security check, this process may require employees to arrive early and wait in line to be tested for Covid-19. See https://sanfordheisler.com/compensability-of-pre-and-post-shift-screenings/ Relatedly, employers may spend time training employees on these and other new protocols. Employers may be required to compensate employees for time spent on these activities.

Meals and Rest Breaks

Many states require employers to allow non-exempt employees to take uninterrupted meal and rest breaks of certain durations. A number of policies related to the new workplace reality may infringe on workers’ rights to these breaks.

The recently-released White House plan for reopening the economy recommends closing common spaces where people are likely to congregate or interact.

If common areas such as breakrooms are closed, employees may have to take breaks at work stations, where they are likely to be interrupted. Alternatively, workers may have to eat lunch in their vehicles, which could require them to spend a portion of that break walking to and from their vehicles or going through security checkpoints, in effect reducing the duration of their meal break below the statutory requirement.

Employees working from home may also face challenges in receiving their meal and rest breaks. In a tradition physical workplace, it is possible for managers and others to observe workers taking breaks, and to avoid interrupting them. By contrast, managers may not know when a remote worker is attempting to take a break, and may interrupt them, unless employers take steps to prevent this.

Failure to reimburse business expenses

Many states, including California, New York, Illinois, Massachusetts, Montana, Pennsylvania, Iowa, and the District of Columbia, have laws requiring covered employers to reimburse employees for costs incurred in the performance of their work. In addition, federal law prohibits covered employers from shifting costs to employees to the extent that doing so reduces non-exempt employees’ compensation below the minimum wage or minimum overtime required for the time worked.

The shift to working from home increases the number of costs that employees are usually fronting. For example, employers might require employees working from home to supply their own computers, phones, internet, cell service, printers, office supplies such as printer ink and paper, and even workspaces and desks. Employees may have a right to compensation for these and other expenses.

Another category of expenses employees might be asked to bear concerns increasing safety in the physical workplace. For example, some employers might require employees to provide their own masks, gloves, and thermometers to take their temperatures on a daily basis, or many require employees to obtain a negative test for coronavirus. In some cases, the employer may be required to cover or reimburse these expenses.

Misclassification

In general, laws pertaining to the payment of overtime and minimum wage, and usually the provision of meal and rest breaks, apply only to non-exempt workers. Whether employees are exempt usually depends on whether they are salaried at a certain rate and on the nature of the work they perform. For example, under federal law and many state laws, in addition to meeting several criteria related to the nature of the work performed, employees must be paid a guaranteed minimum weekly salary.  See https://sanfordheisler.com/are-salaried-white-collar-workers-entitled-to-overtime/. In many settings, employers are reducing pay in order to make ends meet as a response to reduced demand. If these cuts reduce employees’ weekly salary below relevant thresholds, workers may become non-exempt, and therefore, entitled to overtime wages and other protections. Additionally, changes to employees’ job duties may cause them to become non-exempt, particularly when the changes involve an increase in non-managerial and non-administrative work.

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Workers who experience any of these issues may have claims for back wages, penalties, and other damages. Wage and hour laws differ substantially from state to state, so workers concerned about their rights should reach out to a wage and hour attorney to learn more about the laws that apply to them.

Danielle Fuschetti is a Senior Litigation Counsel in the San Francisco office of Sanford Heisler Sharp who works primarily on matters ranging from private negotiations to class action lawsuits.
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Michael Palmer is a Partner in the New York office of Sanford Heisler Sharp. Mr. Palmer serves as Co-Chair of the Firm’s wage and hour practice and also has the expertise to represent individuals in False Claims Act and employment discrimination actions.
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