DOL Issues Guidance on FLSA Issues Related to COVID-19

The Department of Labor (DOL) issued guidelines on COVID-19 issues employers face under the Fair Labor Standards Act (FLSA).

Much of the information, presented in a question-and-answer format, focuses on telework.

The FLSA is administered by DOL’s Wage and Hour Division (WHD). The guidelines encourage employers to accommodate  workers under government-imposed quarantine, citing teleworking and additional paid time off as examples.

“Employers are looking at new options for keeping their workers safe and their businesses running,” Lauren Daming, an attorney with Greensfelder, Hemker & Gale, P.C., said via email. “The Q&A discusses options that many employers may not have ever considered before such as remote work, staggering shifts, and shifting job responsibilities. Apart from those options, employers are also looking at reducing wages and hours as a way to manage expenses and keep people employed.”

FSLA guidance raises wage and hour issues

The guidance raises issues related to wage and hour concepts that employers may not have flagged on their own, according to Daming.

Employers should be aware that decisions regarding wage and hour could trigger nondiscrimination laws, health and safety laws, leave and accommodation laws, and state-specific laws. It also clarifies some common questions about how to handle pay for workers when they can’t physically come to work.

“The guidance also provides some helpful distinctions between how non-exempt and exempt workers should be treated —especially when there is a work slowdown,” she said. “Employers need to be mindful of these distinctions so they don’t inadvertently change compensation for exempt workers in a way that negatively impacts their classification as exempt workers.”

Employers need to be aware of the limited circumstances in which they can deduct pay from an exempt worker’s compensation.

Telework and flexible work arrangements

The DOL notes that the FLSA does not prevent employers from allowing telework or other flexible work arrangements allowing employees to work from home.

The federal agency says employers can encourage or require telework as an “infection-control or prevention strategy” based on information from public health authorities.

When employees telecommute, the requirements of the FLSA still apply.

Employers are required to:

• Pay no less than the minimum wage for all hours worked
• Pay at least 1 and 1.5 times the employee’s regular rate of pay for all hours worked over 40 in a workweek to non-exempt employees
• Maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements

Employees can be required to perform work that is not within their job description.

The FLSA does not limit the types of work employees age 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do.

DOL suggests employers may want to consult HR if employees are going to be assigned work outside their job description. If the employer has a union contract, bargaining unit representatives should be consulted.

Reimbursement and wages

Employers may not require employees who are covered by the FLSA to pay or reimburse the employer for items that are business expenses if doing so reduces the employee’s earnings below the required minimum wage or overtime compensation.

So, employers may or may not, be able to require employees to pay for internet access, computer, an additional phone line, increased use of electricity, etc., DOL explains.

Under the FLSA employers generally have to pay employees only for the hours they actually work, whether at home or at the employer’s office. The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work. It does not require employers who are unable to provide work to non-exempt employees to pay them for hours the employees would have otherwise worked.

Salaried exempt employees generally must receive their full salary in any week in which they perform any work, subject to limited exceptions, DOL notes.

Injuries, discrimination, and volunteers

Employers who are required to keep records of work-related injuries and illnesses will continue to be responsible for keeping such records occurring in a home office, DOL says.

Anti-discrimination laws still come into play. The agency cautions that telework shouldn’t be permitted in a way that violates equal employment opportunity laws.

The agency notes that businesses that use volunteer help in instances where the business has a shortage of workers should be aware that the FLSA “has stringent requirements with respect to the use of volunteers. In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.”

In instances where an employee can not work from home, DOL suggests that employers consider options to promote social distancing such as staggered work shifts.

OSHA and telework

Many employers have expressed concern about whether workplace safety laws apply to teleworkers. DOL notes that the Occupational Safety and Health Administration (OSHA) does not have any regulations regarding telework in home offices.

DOL says the agency issued a directive in February 2000 stating that OSHA will not:

• Conduct inspections of employees’ home offices
• Hold employers liable for employees’ home offices,
• Expect employers to inspect the home offices of their employees

If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions but will not follow-up with the employer or employee.

State laws

“Since the Q&A references other laws and state-specific laws that affect wage and hour issues, it’s important for employers to be familiar with the applicable laws in their jurisdiction,” Daming said.

“I recommend checking out state resources, like the state’s department of labor website, which are generally very helpful (like the DOL Q&As) in summarizing key parts of applicable laws.”

Daming provided this example:

“The DOL Q&A addresses whether employers can require employees to reimburse them for the cost of equipment to perform their jobs if they switch to working from home. However, some states, like Illinois, have state laws requiring employers to pay for equipment necessary for workers to perform their jobs. Laws like that can have a huge impact now with so many workers shifting their work to their homes. There are a variety of other state-specific wage and hour laws that can also impact employer decisions at this time,” she said.

Daming recommends that employers should  familiarize themselves with their state’s unemployment insurance agency or commission. They may offer programs that could help employers make decisions about worker schedules and pay in order to manage costs.

For example, some states maintain “Shared Work programs” that allow employers facing a work slowdown to divide their available work among employees rather than lay off employees.