Fair Labor Standards Act (FLSA)| Overtime & Wage Claims
With many employees continuing to work remotely, employers should remain mindful of their obligations under FLSA, including keeping accurate time and pay records. Some previously exempt employees may have lost their exempt status if they are no longer paid a “salary” or start performing more non-exempt duties than before, which would make them entitled to overtime. Additionally, reducing the salary of a “highly compensated” employee may also cause an exemption to be lost.
• Exempt employees typically are those who (1) are paid a salary and (2) perform exempt duties. Exempt employees receiving a salary who have been furloughed or demoted may fall out of an exemption; meaning, overtime and minimum wage requirements apply!
• FLSA timekeeping requirements
Undocumented time may still be compensable time.
• Teleworking of non-exempt employees
Employees who telework from home may have undocumented, yet compensable time.
• Employees at the premises who are practicing social distance
Many employees fearful of interacting with co-workers will opt to take breaks at the desk including lunch breaks; Answering e-mails, phone calls, etc. during "break time" is compensable time and should be documented.
Solutions? Drafting and enforcing time-keeping policies.
• Many health or medical conditions meet the definition of a “disability” under the ADA.
• Employees fearful of returning to work may ask for “accommodations” in many forms including teleworking.
• Employees who cannot telework may ask for PPE or other protective controls.
An employee who objects to an employer violating a law, rule, or regulation, and who suffers an adverse employment action as a result, may bring a claim for unlawful retaliation. The law, rule, or regulation could include quarantine orders related to the pandemic. Employees may also have retaliation claims for (i) overtime, (ii) workers compensation relief for an injury on the job, which may include a claim due to contracting COVID-19, (iii) unsafe workplace conditions in violation of OSHA standards and guidelines, (iv) discrimination, harassment, or hostile work environment, (v) leave under the FMLA or FFCRA.
Failure to Hire Claims
An employer may receive a claim for not bringing back an employee from a furlough, layoff, or reduction of pay if that employee had previously engaged in whistleblowing, would have been entitled to leave under federal law, or if there is some disproportionate treatment based on a protected status such as race, religion, sex, etc.
Employment claims are fact-specific and handled on a case-by-case basis. The potential exposure to claims by employees is vast and the scope of these claims continues to develop. As we enter this next phase of reopening the economy, employers who are mindful of the above and discuss evolving issues with an employment attorney will be ahead of the curve and in a better position to protect their business.