Employer FAQs for the FLSA During the COVID-19 Crisis
May 13, 2020
To help keep you informed, DM Payroll Solutions has outlined recent FAQ guidance from the Department of Labor (DOL). Explore the commonly asked questions and answers below.
Q. How many hours must an employer pay an hourly employee who must work a partial week because the employer’s business has been closed?
A. The Fair Labor Standards Act (FLSA) applies to hours worked, not scheduled hours. Employers are not required to provide work for non-exempt employees in order to pay them for hours they would have otherwise worked.
Q. If an employer advises salaried and exempt employees to take vacation time or leave without pay due to office closings, is the employee’s exempt status impacted?
A. Salaried and exempt employees must receive their full salary for any week in which they perform work, with very few exceptions. The FLSA does not ask employers to provide vacation time, and as such, employers offering benefits or vacation time are not prohibited from asking employees to use accrued leave or vacation time. This will not affect an employee’s salary payment as long as the employee continues to receive their usual, guaranteed salary. However, an employee is not considered paid on a salary basis if deductions are made for absences caused by the office closure during which an employee has worked. If an employee has not yet acquired leave time, they still must be paid their guaranteed salary to remain exempt.
Q. As an employer monitoring government-imposed quarantine employees, what are my obligations?
A. The U.S. Wage and Hour Division (WHD) encourages employers to be flexible with workers who are quarantined. Suggested accommodations include teleworking and paid time off to affected employees. Further, employers may require teleworking as a means of infection control.
Q. How many hours per week are employees permitted to work?
A. According to the FLSA, there is not a limit to the hours per day or week employees aged 16 and older can work.
Q. Can an employee be asked to perform tasks outside of their job description?
A. Yes. There is not a limit for the types of work employees aged 18 and up can perform. Be sure to note there are restrictions on the work employees under 18 can do, regardless of their job description.
Q. Are public agency volunteers or private non-profit volunteers entitled to compensation?
A. Under the FLSA, if individuals volunteer their services to a parish, state, city, etc., they are not considered employees requiring compensation if:
- They perform charitable or civic services without promise or expectation of being paid
- They freely offer their services
- Are employed by the same public agency and otherwise would be paid to perform the services they offered to volunteer
Q. Do employers need to pay their employees the same hourly pay or salary if they are teleworking?
A. If teleworking is a reasonable accommodation for those with disabilities or required by a union, then yes. If neither apply, FLSA employers must still pay employees only for the hours they have worked, whether in the office or working remotely. Exempt employees must be paid their full salaries if they have done any work within a week. Non-exempt employees must be paid at least the minimum wage and time and a half for overtime work (work exceeding 40 hours per week). If employees are unable to work from home during office closures, the FLSA only requires employees to be paid for the hours they actually worked. As not all employees are able to telework, social distancing within the workplace and staggering work shifts can help to accommodate your employees.
Q. Are businesses required to cover teleworking costs such as laptops, internet access, increased electric bills, etc.?
A. Employers may not require FLSA-covered employees to reimburse them for business expenses if the employee’s earnings will reduce to below the required minimum wage or overtime payments. This is also true for teleworking individuals with a disability as a reasonable accommodation under the Americans with Disabilities Act (ADA).
Q. Are OSHA regulations and standards applicable to teleworking?
A. There aren’t any Occupational Safety and Health Administration (OSHA) regulations regarding teleworking. In 2000, OSHA stated they will not conduct home office inspections, which will not hold employers liable for employees working remotely. Employers are also not expected to conduct inspections of employees’ home offices. However, employers who must record work-related injuries and illnesses must continue to keep track of such records occurring in a home office.
Q. If an employer utilizes temporary employees from a staffing agency to aid their workforce due to staff shortages, is the employer liable if temporary employees are not paid in accordance with FLSA wage requirements?
A. Employees may be employed by multiple individuals or entities under the FLSA. If one or more are joint employers, both may be responsible, as well as severally and jointly liable, for temporary employees’ minimum wage and overtime pay requirements. The DOL issued a final rule providing guidance when determining joint-employer status for individuals performing work for their employer which also benefits another individual or business. The final rule can be read fully here.
DM Payroll Solutions recommends you consult with your legal counsel regarding any questions concerning labor laws. Contact us today if you have any questions regarding your payroll requirements during the COVID-19 crisis.