Wage and Hour Considerations for the Remote Workplace
by Pat Hill, Yash Dave and Emily Tichenor
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s the COVID-19 pandemic continues, many employees continue to work remotely. Remote work has many benefits and allows the workplace to operate even when employees cannot be physically in the workplace, but this type of work does not come without risks for employers. One area that can be particularly perilous for employers is ensuring that employees are paid correctly. Not paying employees correctly, even inadvertently, can be costly; employees who recover in a lawsuit for improperly paid wages may receive twice the amount of unpaid wages, as well as attorneys’ fees and other damages. So, employers must be vigilant to pay all employees correctly. This article discusses some potential pitfalls for employers, particularly in a remote workplace. Notably, this article focuses on the requirements under the federal Fair Labor Standards Act (FLSA). Some states or other localities may have more restrictive requirements, so employers should check the requirements for their respective localities to ensure compliance with applicable law.
It’s difficult to track time for non-exempt employees working remotely, so I just pay them based on their regularly scheduled office hours even if they actually work different hours. Is that okay?
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Non-exempt employees, or employees who, under the FLSA, must be paid overtime compensation for hours worked over 40 in a workweek, must be paid for all hours worked. To ensure that these employees are compensated for all hours worked, employers should require employees to accurately track their time, even if the hours worked are different from an employee’s regular in-office hours. Employers should then pay the employees based on the actual time worked. The United States Department of Labor recently issued guidance for employers regarding an employer’s obligation to track teleworking employees’ work hours. The guidance does not change the law or institute any new policy, but rather reminds employers that they must pay employees for all hours the employer knows or has reason to believe its employees have worked. The guidance specifically states an employer must exercise “reasonable diligence” to ensure that non-exempt employees are being paid for all hours worked. Reasonable diligence includes having a “reasonable reporting procedure” for employees to report unscheduled hours worked and then compensating employees for all reported hours. If an employer has a reporting procedure for employees to report all hours worked, including unscheduled hours, and an employee does not
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