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Remote Work and What Every Business Needs to Know—New DOL Guidance

Mon August 17, 2020 Publications

In June, the DOL issued new guidance regarding COVID-19 and remote work. The guidance offers flexibility on complying with the Fair Labor Standards Act (FLSA) during the COVID-19 pandemic.

Accurate time records are key.

  • The FLSA requires that employers keep accurate time records of the hours worked for all their employees.
  • Best practices dictate that employees verify that time records are accurate.
  • The failure to keep such records can expose employers to FLSA lawsuits, during which the employee(s) will “estimate” the hours worked.
  • Employee estimates of hours worked are often inflated. But without accurate time records to rebut the estimates, litigation can be difficult.

Treat remote work the same as work performed at the primary worksite.

  • Under the FLSA, you must pay for hours worked that the you knew or had reason to believe were performed—even if the work was not authorized.
  • You are not required to compensate your employees for unreported hours of remote work that you have no reason to believe had been performed.
  • You must provide remotely working employees with reasonable time-reporting procedures and pay them for all hours reported.
  • Also, you must pay for unreported hours of remote work that you know or have reason to believe have been performed.

You may offer employees flexible remote work schedules.

  • You may allow employees working from home (or elsewhere) flexible schedules marked by gaps in work during the day to care for children or other personal needs.
  • You do not have to pay such employees for time they did not work, as an example from the guidance makes clear:

“[A]ssume you and your 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 your employee, for instance, to help teach their children whose schools are closed, reserving for work times when there are fewer distractions. Of course, you must compensate your employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between your employee’s first principal activity at 7 a.m. and last [principal activity] at 9 p.m.”

You may temporarily task salaried, exempt employees with non-exempt tasks.

  • Under the FLSA, Exempt employees remain exempt, even if they perform nonexempt duties due to COVID-19.
  • You must still pay exempt employees at least $684 per week.

You do not have to pay hazard pay under the FLSA.

  • Hazard pay may be negotiated between you and your employees or may be mandated by local law.
  • Hazard pay is not required under Florida law.

Your exempt employees remain exempt even if you reduce their salaries.

  • Salary reductions must be predetermined and not based on your day-to-day or week-to-week needs.
  • The reductions must be because of COVID-19 or an economic slowdown as opposed to the quantity or quality of work performed.
  • You must still pay exempt employees at least $684 per week.

Your exempt employees remain exempt even if they take leave under the Families First Coronavirus Response Act.

We continue to closely monitor the situation and update this information to provide the latest workplace and legal developments related to COVID-19. To view the DOL’s guidance, visit https://www.dol.gov/agencies/whd/flsa/pandemic.

We expect your questions and our answers will change as the situation develops. For answers to your specific questions and for the newest developments, please visit our website at  www.donnellygross.com/covid-19-resources/  and contact us at Donnelly + Gross at 352-374-4001 or directly by email:

Paul Donnelly          paul@donnellygross.com
Laura Gross              laura@donnellygross.com
Jung Yoon                 jung@donnellygross.com
Jim Brantley             jim@donnellygross.com
Cole Barnett            cole@donnellygross.com

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*This publication is for general information only and intended for clients and friends of Donnelly + Gross. It should not be relied upon as legal advice as the law related to each situation varies. Moreover, workplace law related to Covid19 is dynamic and changing daily. The sharing of this information does not establish a client relationship.

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