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Virus Telework Surge Primed for School-Year Reckoning in Court

Sept. 8, 2020, 9:30 AM

The traditional management headache of tracking employees’ unscheduled telework hours is headed for a pandemic reckoning this fall as millions of American homes become part office and part virtual classroom.

The pandemic’s pre-summer months showed that teleworking parents’ obligations to assist children with school assignments during the normal workday inevitably led to irregular work schedules and difficulty determining when someone is truly off the clock.

That unpredictability motivated the Labor Department to advise businesses late last month that they’re obligated to pay for remote employees’ unrecorded work time, provided they knew or had reason to believe work was taking place. But several wage-and-hour practitioners said they expect a litigation surge in coming months involving other Fair Labor Standards Act gray areas that the guidance didn’t address and that will continue to trouble employers when paying for tasks performed outside the office.

The vague boundaries of the compensable workday was a vexing area of employment law well before Covid-19 upended workplace norms and created mass confusion over workers’ rights and legal risk. Future litigation over these emerging complications could center on how effective employers are in establishing a system for employees to report unscheduled telework hours—as the DOL recommended—and how successful plaintiffs’ attorneys are in proving that workers face obstacles in reporting that time.

“I think the challenge for employers is to train their supervisors to take steps to try to make sure employees are not working off the clock, and that they’re not asking employees to do things that would cause them to work off the clock,” Fred Plevin, founder of management-side firm Paul, Plevin, Sullivan & Connaughton in San Diego, said.

And plaintiffs’ lawyers are zeroing in on the new reality of working from home and the possibility that employers could dissuade workers from reporting unscheduled hours while assigning them a heavy workload, according to Justin Swartz, a partner at plaintiffs firm Outten & Golden in New York.

“We intend to be very aggressive in our cases to demonstrate that employers let their employees know they shouldn’t record more time than they’re scheduled for,” Swartz said.

Many workers would generally be barred from bringing claims of unpaid telework hours because they fall under one of the FLSA’s minimum wage and overtime exemptions for “white-collar” jobs. But even so, workers classified as exempt often flood the courts with allegations to the contrary.

Late-Night Emails

Last month’s guidance from DOL’s Wage and Hour Division informed companies that they’re not on the hook for wages when workers don’t report the time and don’t do anything that gives managers proof or reason to believe work was done beyond normal hours.

But in many cases, a manager is handed evidence, such as a late-night email, that places the burden on the business to compensate for that time regardless of whether the worker reported it on their timesheet, said Plevin, who is chair-elect of the Wage & Hour Defense Institute.

The agency’s field assistance bulletin spared employers from having to proactively investigate unscheduled hours by scouring employee laptop and cellphone usage, so long as they devise a system for workers to report that time. A reporting procedure is one way businesses can exercise “reasonable diligence,” the standard courts consider when determining if an employer should’ve acquired knowledge of unscheduled hours worked, the DOL guidance said.

Even if employers implement such a system, however, workers’ day-to-day responsibility to care for children when schools opt for virtual learning will make it increasingly difficult to determine based on the timing of an email whether a person’s workday had previously ended.

“Employers really need to monitor the timesheets to see when people are working,” Plevin advised. “Is an employer required to match up times of emails with times on the timesheet to determine whether or not all the hours are reported? It’s not clear from the field assistance bulletin what kind of scrutiny and research is required.”

Compounding Factor

That confusion may be compounded by another recent DOL effort to help employers adjust payroll responsibilities for teleworking staff. As part of a temporary regulation in April requiring certain businesses to offer paid-leave benefits to workers affected by the virus, the WHD suspended earlier guidance which had mandated that all hours between an employee’s first and last principal activities of the day must generally count as compensable work.

The paid-leave rule said this requirement won’t apply to employers who’ve given workers the flexibility to telework due to the pandemic. That meant workers would have the freedom to teach their children in between work time, while relieving employers of the duty to pay for the entire period.

But that leeway could make it even more challenging for employers to pinpoint which tasks are extra and must be paid for versus hours that didn’t need to be recorded because they were part of the worker’s scheduled day.

“I have recommended that clients encourage employees to work in blocks to the extent possible and...to have a process for the employees to record intervening time-frames,” Caroline Brown, a management-side employment lawyer at Fisher Phillips in Atlanta, said.

Setting predetermined work intervals and recording impromptu childcare breaks may sound like a solution, but in practice the overlap of work and helping a child with school work can blur lines around compensation.

Not All Breaks Are Equal

Take, for example, a remote worker in an assistant role who monitors emails while simultaneously seizing on a down period to help their child with a class assignment, said Michele Fisher, a managing partner at plaintiffs firm Nichols Kaster in Minneapolis. Whether employers are required to pay for that period may emerge as a question for courts to decide, she added.

Furthering the trickiness, some interruptions might be deemed work time, such as a rest break, while others might be treated as non-working time, such as a meal break, Brown said.

In addition to challenges arising from virtual learning, employers face tough calls on wages for remote work performed by overtime-exempt managers.

“If an exempt employee doesn’t perform any work in a workweek, then you don’t have to pay them,” said Jeffrey Brecher, head of the national wage-hour practice group at Jackson Lewis in Long Island, N.Y. “If you furloughed them for two weeks and they were performing some work, it could create a risk that the workweek would need to be compensated.”

Fisher said she is reviewing whether a prospective plaintiff has a claim after the person wasn’t paid for time spent responding to work emails while on furlough.

“A lot of these things are new,” Fisher said. “Just like employers’ counsel, plaintiffs’ counsel are trying to figure it out as well, and what makes sense and what’s fair and reasonable under these circumstances.”

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Chris Marr in Atlanta at cmarr@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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