As a result of the COVID-19 pandemic, employees and employers alike are having to adjust to telework arrangements. Telework situations vary, but telework usually entails employees working from home instead of coming in daily to a traditional office. In terms of employment law, work performed under a telework arrange is treated the same as work performed at the employer’s worksite, and employers must still follow federal wage and hour law, including the Fair Labor Standards Act.

Rate of Pay

The Fair Labor Standards Act (“FLSA”) establishes basic minimum wage and overtime pay standards for non-exempt employees. It requires employers to pay non-exempt employees an hourly rate that is at least federal minimum wage, and overtime wages at 1.5 times the employee’s regular rate for all hours worked in excess of 40 hours in a workweek.

The federal minimum wage is currently $7.25 per hour. An employer may reduce a non-exempt employee’s hourly rate due to a business or economic slowdown, including an employee performing telework, provided that the employee is still being paid at least $7.25/hour and receives 1.5 times her regular rate for all hours worked in excess of 40 hours in a workweek.

Compensation for All Hours Worked

The FLSA also establishes what constitutes compensable work time. Employers are required to pay employees for any work “suffered” or “permitted” during a workweek. Employers must thus compensate non-exempt employees for all hours of telework actually performed, including any overtime hours worked. This is true even if the employer did not specifically authorize that work as the FLSA requires employers to compensate employees for all hours of work performed that the employer knew or had reason to be believed had been performed.

An employer who is unable to provide work, including telework, to a non-exempt employee is not required to pay the employee for the hours she would have otherwise worked. An employer is only required to pay a non-exempt employee for her hours actually worked.

Continuity of Work While Working at Home

An employee’s workday generally encompasses the time between when the employee first starts to perform her “principal activity” and when the employee stops performing her “principal activity.” An employee’s principal activity is the tasks or duties the employee was employed to perform, and include any task or duty that are an essential part of her principal activity. Generally, all the time between the employee’s performance of her first and last principal activity is compensable work time. Thus, an employee would be compensated for 8 hours of work if an employee starts performing her principal activity at 8:00 am and stops performing her principal activity at 5:30 pm (assuming the employee is given a dedicated 30-minute lunch break).

However, in response to the COVID-19 pandemic, the U.S. Department of Labor has stated that employers who allow telework arrangements with flexible hours do not need to compensate non-exempt employees for all the time between the performance of their first and last principal activity. But, the employer must still compensate its non-exempt employees for all hours actually worked during a workday. For example, if an employer agrees to a telework schedule in which an employee works from 8:30 am to 11:30 am, 1:30 pm to 3:30 pm, and 7:00 pm to 9:30 pm, the employer must compensate the employee for the 7.5 hours actually worked but not all 13 hours between the employee’s first principal activity at 8:30 am and the employee’s last principal activity at 9:30 pm.

Wage & Hour Legal Experts Can Help

If you believe your employer has violated the FLSA, or you would like to discuss a wage concern or claim, contact our office to speak with one of our experienced Wage & Hour attorneys. We at Hawks Quindel have extensive experience in dealing with FLSA violations and wage claims. Please call a Madison wage attorney directly at (608) 257-0040 or a Milwaukee wage attorney at (414) 271-8650, or email us via our Contact Page.

Vanessa Kuettel
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