Tuesday, January 10, 2023

Settlement highlights wage and hour risks of remote work

The City of Cleveland has agreed to pay $50,000 to settle the wage and hour claim of a City Hall employee who claimed that she wasn't paid overtime while working from home during the Covid-19 pandemic.

Eve Bonvissuto, an assistant administrator in the city's public safety department's medical unit, had claimed $68,709 in overtime pay. She alleged that the city had misclassified her as exempt, and that city had no timecard or time-tracking system in place at the time for remote workers.

In a work world in which more and more employees work from home at least some of the time, there are some lessons to learn from Cleveland's wage and hour gaffe.

If a non-exempt employee is working, it's paid time. The standard isn't whether it's authorized, but whether you know or should know that an employee is performing work. Thus, the key to mitigating against the risk of claims for unpaid overtime for remote, non-exempt employees is to establish appropriate boundaries for remote workers. 

1.) Audit all of your employees for their exempt status. This audit will help ensure that you have your employees properly classified as exempt versus non-exempt.

2.) Prioritize for your employees a separation between working time and non-working time, even when they are working from home. A few simple steps can help accomplish this goal — establish set working hours, don't email (or expect emails) during non-working hours, and reinforce by reminding employees that work time is for work and non-work time is for everything else.

3.) Require employees to record and report all time worked in a specific manner. Time sheet, call-in line, email, an app, whatever. Just make sure they are reporting all minutes worked.

4.) Implement a policy that non-exempt employees are only paid for time reported consistent with and pursuant to the policy established above. The law likely will not allow for compensation if an employee fails to follow your reasonable time reporting rules.

5.) Consider a digital curfew — a policy prohibiting non-exempt employees from emailing, texting, DMing, Slacking, or otherwise accessing tech for work purposes while off-duty.

6.) If employees are working off-the-clock when they are not supposed to be, don't ignore it. Remind them of your working hours, and if it continues start with a warning and move up the discipline scale if it continues.

The Fair Labor Standards Act remains a maze of traps for the unwary employer. These few steps will help you navigate this corner of that maze.