Pandemic Pay Issues For Wage And Hour Lawyers To Watch

By Jon Steingart
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Law360 (September 24, 2020, 6:54 PM EDT) -- Six months into the pandemic, wage and hour issues such as paying employees for commuting and for pre-shift safety protocols and the uncertainty of carveouts have emerged as top concerns for employment lawyers.

A lot of the issues that show up are new twists on old rules, according to Paul DeCamp, co-chair of employer-side firm Epstein Becker Green's national wage-and-hour practice group.

"We're not really seeing any new rules that are coming about because of COVID, but what we're seeing is COVID is creating situations that are potentially causing employers to run afoul of rules that have been in place a long time," DeCamp told Law360.

Here, Law360 examines potential wage and hour pitfalls to watch out for.

Paying Employees for Commuting Time

As the pandemic stretches beyond the six-month mark for many people, measures that began in March that they expected to be short-term changes are now an indefinite reality. Two areas to watch involve how those transformations may affect what compensation employers owe under the FLSA.

One issue for employers to consider is that the transition to widespread work from home may mean they need to pay employees for time when they have to travel to the office, according to Jonathan Keselenko, who represents employers at Foley Hoag LLP.

When home is the primary workplace, an employee who has to go in to the office may be entitled to pay for that time, Keselenko told Law360.

Employees who primarily work from home but need to go in for a meeting may be due pay for the travel time, Keselenko said. Ordinarily, commute time between home and work isn't compensable because the Portal-to-Portal Act, a major amendment to the FLSA, specifies that employers don't have to pay for travel time at either end of the workday, he said.

"If it's part of a regular commute, the Portal-to-Portal Act says you don't need to pay for it," Keselenko said. "If it isn't, then there's a pretty good argument that you do."

Many employers are offering work from home, and tech giants such as Facebook Inc., Twitter Inc. and Square Inc. have said they will let employees work remotely even after the pandemic subsides. When someone's home is their primary work location, employers may have to pay for trips to the office that they didn't have to before.

A Reliance on 'Emergency' Carveouts

Another provision in the FLSA that's being tested is the ability for employees who ordinarily are exempt from minimum wage and overtime pay requirements to pitch in on an emergency basis with non-exempt tasks without switching to overtime-eligible, DeCamp said.

As the pandemic drags on, workplace changes that were part of an emergency response may become a new normal, according to DeCamp.

"Is it still an emergency, or is it a new normal, or a new interim period before things return to normal?" DeCamp said.

In light of the uncertainty and in the interest of minimizing the risk of exposure to an unpaid wages lawsuit, he recommends clients analyze whether workers are owed minimum wage and overtime without relying on the FLSA regulations' emergency provision.

"From a counseling standpoint, I advise clients not to rely on that exception," DeCamp said.

Christopher McNerney of Outten & Golden LLP, who represents workers, said there's a surefire way employers can make certain they stay on the right side of the law when there are questions about whether emergency circumstances excuse compliance with certain pay requirements.

"If you're concerned about compliance, pay your workers at least that floor," McNerney told Law360.

Paying for Safety Protocols

When employees return to workplaces, they won't be set up the same as before. The Occupational Safety and Health Administration recommends social distancing and screening employees for symptoms so that the coronavirus doesn't spread at work. Keeping elevators from getting too crowded and checking employees as they arrive can cause lines to form, so people may spend some time waiting to even get into the workplace.

The question is: is that time compensable? The FLSA doesn't require employers to account for trivial amounts of time, but attorneys who represent workers and management agree that employers can avoid a wage lawsuit by simply paying workers, even if it may not actually be required.

"My conservative advice has been that time at the employer's premises, whether it's in the building's lobby or upstairs on the 20th floor ... any time spent answering a questionnaire, getting a temperature check and the like, if that is more than de minimis, then that should be paid," said Robert Whitman of Seyfarth Shaw LLP, who represents employers and who serves as co-chair of the state bar association's wage and hour committee.

McNerney, the worker-side attorney, said the easiest way for employers to make sure they comply with wage-and-hour requirements is to err on the side of paying people more than the law requires, not less.

"You pay workers for the time they spend protecting themselves, their coworkers, and the general public," McNerney said. "Especially now when we're in this society-wide crisis, it's not only the right decision. It's the moral decision."

However, Jade Butman of Nixon Peabody LLP, who counsels employers, said they shouldn't be on the hook for rules laid down by a third party.

"Practically speaking, that time would be spent because building management is requiring it, not because the employer is requiring it," Butman told Law360.

But when an employer and building management are one and the same, that could be a situation where the employer is making the rules and needs to pay for time, she added.

--Editing by Brian Baresch and Emily Kokoll.

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