Employees working remotely may be entitled to overtime. When state and local governments began issuing stay-at-home orders in response to the COVID-19 pandemic, many employees suddenly found themselves working from home. This change in practice has increased the likelihood that employees will be working overtime. In many instances, employees working remotely will have access to technology or be taking on new responsibilities that they didn’t have when they worked primarily from their offices.
Basic overtime regulations
The federal Fair Labor Standards Act (FLSA) governs overtime pay and record keeping for part-time and full-time workers in the private and public sectors. The FLSA divides employees into two categories. Nonexempt employees are generally paid hourly and are entitled to overtime pay at one and one-half times their regular rate of pay beyond a 40-hour workweek. Employees are exempt from minimum wage and overtime pay requirements if they work in certain executive, administrative, professional and outside sales positions. Exempt employees are generally salaried and not entitled to overtime pay. However, they must be paid the same amount per pay period, regardless of how many hours they work. That is, they must be paid the same even if they work more or less than 40 hours.
“Off the Clock” work may result in overtime
Recent guidance from the Department of Labor notes that employers may encourage or require employees to work from home to control the spread of COVID-19. Employers, however, are not required to have telework programs in place. Working remotely does not change the federal wage-and-hour laws; they apply the same to employees working from home. And the same overtime laws still apply to employees working from home.
With large numbers of nonexempt employees working remotely, employers may have difficulty monitoring the number of hours the employees are actually working. And many employers may be unable to use the same compliance measures they used in the workplace to monitor the hours worked by their employees. Without such measures, it’s easy to see how employees could end up working longer than a normal eight-hour workday. Typical off-the-clock tasks such as reading and responding to emails, text messages and phone calls or conducting “a few minutes of research” can add up over the course of a week and lead to a claim for unpaid overtime wages.
While working from home may cut down on the time employees lose to commuting, it may also increase the chances that employees working remotely feel compelled to work overtime. As such, any employers should take reasonable steps to ensure that its nonexempt workers are being paid overtime for each hour its remote workers are performing, including any “off-the-clock” work performed on mobile phones or tablets.
Greg W. Lisemby has been named to The National Trial Lawyers: Top 100 Civil Plaintiff Trial Lawyers list for 2017. The list is comprised of a premier group of attorneys who practice civil plaintiff law in the state of Texas. Only lawyers who have undergone a strict process of peer reviews are eligible to be named to the list. In order to qualify, an attorney must show leadership, and exhibit superior qualifications as well as leadership in their field. Objective, uniformly applied criteria are used to determine the attorneys who will be included.
