As offices close or significantly reduce operations due to COVID-19 and the myriad of Stay Home/Shelter in Place government orders, many West Coast employers and employees are waking up to a new reality: remote working (or telecommuting).
But prior to asking employees to work from home, did the business establish clear expectations about what was expected including perhaps even a formal remote working policy? If not, there are a few key compliance issues that most telecommute/remote work policies address that employers should consider addressing now or they could be more vulnerable to employee claims and wage and hour audits when life returns to normal.
First and foremost it’s important to remember that when employees work remotely, employers still must comply with employment laws governing topics like meal and rest breaks, off-the-clock work, and overtime[1]. It may be difficult to apply these requirements to employees working remotely, especially when that may mean numerous remote “worksites” to consider, but there are no special “pandemic exceptions” to wage and hour requirements or most other workplace laws.
Providing Meal and Rest Breaks
Even in non-pandemic times, employers are charged with ensuring compliance with legally mandated break requirement laws – and that responsibility extends to remote work as well.
For example, California requires non-exempt employees who work more than five hours be provided with an uninterrupted and duty-free, unpaid meal period of not less than 30 minutes. Washington has the same five-hour requirement, while Oregon requires the meal period begin after no later than six hours of work. These laws also typically require that the meal period occur during a mid-point of the shift and not at the beginning or end of the shift to shorten the workday in lieu of a meal break.
Depending on which state the employee works in, they may be able to waive meal breaks, but care must be taken to do so correctly. In Washington, for example, employees in any industry may voluntarily waive meal period requirements. In California, however, the ability to waive a meal period depends on the employer’s industry and shift length. In Oregon, however, waivers are even more limited, but employers may claim a hardship exception if they do so in advance.
Meal break requirements are in addition to required rest breaks, which can also vary by state. For example, in Washington rest breaks may be taken intermittently rather than in one block of time, but that may not be true in Oregon or California.
In any of these states, if the employee works beyond the traditional 8-hour day, additional meal and/or rest breaks may be required – but again, the requirements will vary by state, and perhaps by industry.
Wherever the work occurs, employers should communicate and enforce clear meal and rest period expectations. Failure to provide meal and rest periods in accordance with the law, even when the employee works remotely, can expose employers to significant penalties. Employers should work with counsel to ensure compliance with these varied laws.
Preventing Off-the-Clock Work
Obviously with remote work there is less ability to monitor the hours an employee works, so that makes effective communication about expectations even more critical.
Employers should ensure that employees know that they must record any and all time worked - and be clear that no “off the clock” work is permitted. Likewise, if there are specific hours that the employee has been scheduled, make sure that the employee is told that they are expected to be actively engaged during those timeframes, no more and no less, and establish a clear communications protocol that is required in order to modify an assigned schedule.
While not unique to the current circumstances, the round-the-clock access to company communications tools creates new risks, especially as to non-exempt (i.e. hourly) staff. This issue often arises in the remote working context when an employee responds to work e-mails, text messages or phone calls - which would have otherwise happened only at the office, but is now easily accessed at all hours.
All states require employers to maintain records identifying a non-exempt employee’s work hours and to compensate the employee for all time worked, even when the employee works remotely. It’s important that policies and other directives are clear that all work must be recorded, and regardless of whether the time was approved, if it was worked employers are obligated to pay it.
If the employee performs unauthorized work, the employer should pay for the time worked and address the unauthorized work as a disciplinary issue.
Monitoring Overtime and Maximum Hours Limits
Don’t forget special overtime rules that may apply depending on the work location.
Federal law requires that non-exempt personnel receive overtime pay (i.e., 1.5 times the employee’s regular hourly rate) for all hours worked over 40 in a single workweek, and those requirements apply in each state. But state laws may add additional overtime pay requirements with which the employer must comply.
For example, California law requires employers to pay overtime for all hours worked by a non-exempt employee over eight hours in a day, and double time for all hours worked in excess of 12 hours in a day. Further complicating the rules, employers must pay non-exempt California employees double the employee’s regular rate of pay for any work performed beyond eight hours on the seventh day of a workweek. This is particularly significant in the context of remote working because California law requires employers to pay overtime even if the work performed was not authorized by the employer.
Oregon generally mirrors federal law, but has adopted special overtime rules for certain government entities and hospitals. Oregon also has special overtime and maximum hour rules for canneries and “manufacturing operations”, which is broadly defined and generally won’t apply to most remote work that is administrative in nature. As a response to the pandemic, and the increased need for certain essentials, Oregon has made a temporary rule change (effective until 9/22/2020) allowing some relaxation of those special rules. Information about those and applicable employer notices are available at https://www.oregon.gov/boli/TA/Pages/Daily-and-Weekly-Overtime.aspx
Washington’s overtime laws generally mirror federal law, but significant changes to Washington’s exemption rules currently set to go into effect in July 2020 will make many more employees non-exempt (and eligible for overtime). Now is the time to start preparing for the necessary additional changes that may bring. Our prior client alert on that can be found here.
If employers wish to avoid having to pay unapproved overtime to employees working remotely, they should have a system in place to ensure that employees do not alter their schedules while working from home in a way that results in more than eight hours of work each day or 40 hours a week.
We hope this is helpful to you as you navigate the new and changing world of employment. While remote work may be both necessary and important to get through these trying and unusual times, it’s important that employers remain mindful of their continuing legal obligations to their employees in the midst of it. We would be happy to assist you with any specific questions or issues you might have.
[1] Federal and state employment laws and labor codes can be complex and often do not uniformly apply to all industries and positions. Employers should consult with legal counsel to ensure compliance.
