As a result of trying to keep the workplace as safe as possible, remote work has taken off in recent months. For some employers, they merely expanded their telecommuting program. For others, employers are offering their employees the ability to work from home for the very first time.
Regardless of how much experience an employer or employee has with remote work, it can lead to problems with compensation. Depending on what kind of job an employee has, there may be legal rights they need to be aware of to ensure they get paid for the work they do. Many of these rights come from the Fair Labor Standards Act of 1938.
What Is the Fair Labor Standards Act?
The Fair Labor Standards Act of 1938 (FLSA) is a major federal employment law that established key rights for employees. Some of these include:
- Minimum wage
- Overtime pay
- 40-hour workweek standard
But not all employees enjoy all of these rights and protections. To help determine which employees get a particular benefit, the FLSA has created two general types of employees: exempt and non-exempt.
Exempt employees are not entitled to overtime pay under the FLSA as they are “exempt” from the FLSA’s overtime wage mandates. Most salaried jobs that are professional, administrative or executive in nature will be considered exempt under the FLSA.
In contrast, non-exempt employees are subject to many of the FLSA’s provisions, especially concerning overtime pay. If a non-exempt employee works more than 40 hours in a week, they must receive overtime pay equal to at least time-and-a-half of normal pay.
To be a non-exempt employee, the general rule is that the individual must:
- Have job duties that are not normal for an exempt employee.
- Get paid on an hourly basis.
- Receive less than $684 per week in compensation.
Why does the exempt versus non-exempt distinction matter when working from home? Because it can affect how an employee gets paid.
FLSA Rights While Working from Home
One of the issues employers have for allowing their employees to work from home is the reduced ability to monitor the employees. This lack of information can cause concern for employers for a variety of reasons, but one in particular can be compliance with wages laws and rules, such as those under the FLSA.
When an exempt employee telecommutes, the employer must pay that employee his or her full compensation as long as the employee does at least some work during the week. And if the exempt employee works more than 40 hours that week, the employee will still receive the same compensation as if they worked just one hour that week.
But with non-exempt employees, things can get more complicated. That’s due to employer concerns about paying the non-exempt employee for the hours the employer never wanted them to work. There are several situations where an employee could be entitled to pay that the employer never intended.
In one situation, the employer may need to pay an employee for being on call. Generally speaking, employees do not receive standby pay, or compensation for being on call, unless they are prevented from using the standby time in a way they choose. But there is no bright-line rule as to what constitutes enough restrictions on an employee’s time such that they must be paid for being on call.
Let’s say a telecommuting employee needs to be on call from 8 a.m. to 5 p.m. and be ready to begin working if they get a call from a supervisor. And until the employee gets a call (that may never arrive), the employee is free to do anything they want. It’s unlikely there will be standby pay for this employee.
But if the employee must answer frequent customer telephone calls as well as quickly respond to work emails as they arrive, then it’s possible the on-call employee will get standby pay.
In a second situation, an employer may need to pay an employee for unscheduled work, including overtime work. Employers try to avoid this because they only want to pay employees for the hours the employer schedules them for. Additionally, employers usually like to avoid paying for unplanned overtime.
An employer is required to pay its non-exempt employees for all hours worked, including work not requested, but permitted. This includes both overtime and work performed at home. In other words, an employee is entitled to compensation for unscheduled work if the employer knows, or has reason to know, that such work is taking place. But when an employer can’t effectively monitor its employees, it can lead to employers being on the hook for unexpected wages when the employees complete unscheduled work.
To help deal with this issue, employers might enact a policy that bans any unscheduled work. But a simple policy may not be enough.
There could be situations where an employer assigns so much work to an employee that they are unable to complete the assigned work within the scheduled time period. If this happens, the employer could still be responsible for paying for the unscheduled work.
In a third situation, an employer may not be able to obtain reimbursement from its employee for remote working expenses. For the most part, employees do not have to pack back their employer for costs to work from home if those reimbursements would result in the employee earning less than minimum wage.
The types of expenses a telecommuting worker might have to pay include adding a home landline, increasing the speed of the employee’s home Internet service or purchasing hardware or software for teleconferencing.
