Thursday, February 16, 2023

Do you know the rules for paying remote workers for “downtime”?

Every 10 minutes at some random point that she couldn't anticipate, the company took photos of her and her work, a screenshot of whatever she was working on, and a photo of her face. And they were doing that to verify whether or not she was working.… The company was using that to pay Carol and the other workers only for the minutes when they appeared active.

If she was clicking away at a spreadsheet, doing demonstrable work, she was fine. She would be paid for that 10-minute increment. But as soon as she got a cup of coffee or answered the doorbell or went to the bathroom, she risked not being paid for that time.…

[E]ven if she had worked for 9 and 1/2 minutes out of 10 minutes, if that screenshot showed her inactive, if she was gone or distracted for that 30 seconds, she wouldn't be paid for that increment.

That's from The New York Times, describing the latest employer trend of monitoring remote workers and only paying them for the time during which the performance of actual work could be verified. And, if those remote workers happen to be nonexempt, that practice is highly illegal.

The Department of Labor just issued a Field Assistance Bulletin reminding employers on the proper payment of remote workers under the Fair Labor Standards Act.

  • The FLSA requires employers to pay nonexempt employees for all hours worked.
  • "Hours worked" is not limited solely to time spent on active productive labor but also includes time spent waiting or on break.
  • Short breaks of 20 minutes or less (e.g., to go to the bathroom, get a cup of coffee, let the dog outside, or stretch one's legs) are generally counted as compensable hours worked.
  • Longer breaks "during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked."
  • These rules apply regardless of whether the work is performed at the employer's worksite, at the employee's home, or at some other location away from the employer's worksite.

In other words, even if you catch your nonexempt employees "not working" during the workday, if a break lasts 20 minutes or less you still must pay them. It's non-negotiable under the FLSA. (Exempt employees are paid a salary which becomes owed in full as soon as he or she works just one minute in a work week.)

If you discover an employee abusing paid breaks or their salary status, your remedy is discipline or termination, not withholding wages.