Navigating the Intersection of Telecommuting and Wage-and-Hour Law
Telecommuting — Perk, Convenience, and Potential Legal Minefield
Many employers offer their employees the opportunity to work from home on either a regular or temporary basis. While the flexibility of a telecommuting arrangement can benefit both the employer and the employee, allowing a nonexempt employee to work at home can lead to a minefield of wage and hour issues that an employer must carefully navigate to avoid potential liability.
As telecommuting has become more prevalent, there have been a number of lawsuits filed by telecommuting employees (often as class actions) claiming violation of various state and federal wage and hour laws, suggesting a new trend in wage and hour litigation.
All employers who currently have telecommuting employees or are considering allowing employees to telecommute should make sure they are aware of the legal landscape affecting such employees and take steps to comply with all applicable legal requirements.
Work is Work, Wherever and However Performed
Work is work, whether done on a computer at home, in a hotel room on the road, in a cybercafe, or at the golf course or beach. It can be done on a laptop, blackberry, or simply by talking on a cell phone, but it’s still work subject to recordkeeping obligations, with overtime premium due if the total exceeds 40 hours in a work week and the employee is not exempt.
Some of the Potential Wage-and-Hour Law Issues Include:
- How to properly track and record all hours worked by telecommuting employees. This may require consideration of timekeeping software for employee-assigned hardware, for example, since punching a physical timeclock is not an option.
- How to properly compensate telecommuting employees for all hours worked, including overtime. Recordkeeping gets you most of the way there, but there are some subsidiary issues:
- How to properly compensate telecommuting employees who are required to wait for work or instructions. The pace of work for telecommuters may be quite different than conventional employees. They may effectively be “on call” 24-7. This raises the classic question of whether they are (in somewhat quaint language) “engaged to be waiting” (like a fireman, ALL the on-call time is working time), or “waiting to be engaged” (free to do pretty much as they like, as long as they are available by cell, email, etc.).
- Wage and hour issues involved in requiring telecommuting employees to travel to the employer’s physical workplace. Ordinarily, pre- and post-work commuting is not working time, but travel from point to point within the work day is. What if a telecommuting worker starts the day at 7:00 AM by handling some overnight email and then heads to the office for a special staff meeting at 9:00? Is the travel ordinary commuting or during-the-workday travel?
Are You Sure They Are Exempt? You Better Be
Finally, the elephant in the room is whether employees treated as salaried exempt really are such. If they are, they can work all hours, day and night, constantly on call, even when on “vacation,” and not receive overtime pay.
But merely paying a salary doesn’t make someone exempt; their job must satisfy strict “duties” tests as well.
Further, the salary basis of pay must be treated properly; improper deductions for time not worked may destroy salaried status.
Confused? Help is Available — at a Discounted Price!
Follow this link to check out Lorman Education Service’s December 5 teleseminar, “Wage and Hour Issues Surrounding Telecommuters,” and to take advantage of the ten percent discount offered to George’s Employment Blawg readers.
When it comes to wage-and-hour laws, and the litigation growth industry based on them, forewarned is definitely forearmed — and protected.