As businesses reopen and employees begin returning to work, employers will have to navigate complex wage and hour issues they may have never considered before. Employers will need to adapt to a “new normal” of major workplace changes, including increased teleworking, social distancing, and new health and safety measures.
Wage and hour issues for employees returning to the workplace
Whether an employer must compensate an employee for the time they spend complying with new workplace protocols, like screening and safety measures, will require a fact-intensive, state-specific analysis. The following are just a sampling of some wage and hour issues employers must consider (under both federal and state laws) as employees start coming back to work:
- Do you have to compensate employees for time spent taking their temperature before or during work?
- Do you have to compensate employees for time spent while they wait for their temperature to be taken?
- Do you have to compensate employees for the time they spend putting on or removing personal protective equipment (PPE) such as masks and gloves?
- Do you have to compensate employees for time spent while they complete a questionnaire or answer questions related to potential COVID-19 exposure?
- Do you have to compensate employees for time spent hand washing or for other sanitizing breaks?
- Do you have to pay reporting pay or otherwise compensate employees for time spent at work if they were promptly sent home upon arrival but displayed COVID-19 symptoms?
- Do you have to include attendance bonuses or similar incentives for returning to work in the “regular rate” of pay for overtime purposes?
- Does your state require advanced notice to employees of changes to their hours or pay?
In the COVID-19 era, resolution of all of these issues will be driven by complex analyses that incorporate both a careful review of analogous case law (e.g., is donning COVID-19 PPE akin to donning PPE in a healthcare or hazardous working environment?), and the details of how each employer executes these tasks. Likewise, employers will need to stay abreast of rapidly changing law to make sure that adjustments to the terms or conditions of employment do not result in regular rate violations or notice violations given the unique (and possibly recurring) nature of COVID-19 shutdowns and adjustments.
Wage and hour issues for employees working remotely
Employers also face continuing challenges as they move to longer term acceptance of remote working. The following are some wage and hour issues employers should consider (under both federal and state laws) for employees who telework or otherwise work remotely:
- Does your timekeeping system allow non-exempt employees to accurately report all time spent working each day when teleworking?
- Do your policies require that non-exempt employees accurately report all time spent working each day, including when teleworking?
- Are you taking reasonable steps to ensure that non-exempt employees do not perform any work off the clock?
- Are you ensuring that non-exempt employees comply with mandatory break and meal period requirements under certain state laws?
- Are you ensuring that employees are complying with rest period requirements under certain state laws?
- Does federal or state law require you to reimburse employees for expenses they incurred to set up their home office or for obtaining PPE or other health or safety equipment?
- Have you audited your work-from-home protocols, including time-keeping software, to identify any areas of potential compliance concern?
A careful evaluation of employment policies and practices is essential to avoiding pitfalls and costly litigation. Employers should also consider retraining and reeducating managers, and sending reminders of timekeeping policies, to help ensure compliance with applicable wage and hour laws.
For assistance navigating these and similar issues, employers should seek guidance from Reed Smith’s experienced wage and hour practitioners.
 In Oregon, for example, employers could face strict liability for failing to ensure their employees take full 30-minute meal breaks.