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Managing Teleworking Employees: Legal and Practical Considerations

The coronavirus outbreak has caused many businesses to require or encourage their employees to work from home. Depending on the business, permitting employees to work remotely may be the optimal solution for business continuity considering the various “stay at home” orders that remain in effect. However, teleworking is a phenomenon that many businesses are facing for the first time. Below are some issues to consider when allowing your employees to work from home.

Wage and Hour Laws

Keeping track of employees’ hours worked is much more difficult when they are not physically present in the workplace. Remaining compliant with the Fair Labor Standards Act (“FLSA”) and applicable state laws is crucial during this time of uncertainty. As detailed below, wage and hour compliance considerations differ for exempt and non-exempt employees.

Exempt (Salaried) Employees

Pursuant to the FLSA, exempt employees must be paid in full for any workweek in which they perform any work. This includes when an exempt employee is available for work, but is prevented by his or her employer to work the full workweek (such as when a healthy employee is required to work from home solely due to potential exposure to COVID-19 in the workplace).

Therefore, if the employer does not want the employee to perform any work during, for example, a furlough or temporary layoff, then the employer must so instruct the employee and warn the employee he or she may be disciplined for disregarding this instruction.

Nonexempt (Hourly) Employees

Complying with wage and hour laws can be even trickier as it relates to nonexempt employees. This is mainly because nonexempt employees are due overtime wages if they work more than 40 hours in a workweek. While employers are free to reduce non-exempt employees’ regularly scheduled hours, if they are permitted to work from home, it is imperative for employers to track employees’ time to ensure they are not working more than 40 hours intentionally or unintentionally.

One option is to terminate employees’ use of the employer’s remote services at the close of the employee’s regular workday or use software to track and/or limit nonexempt employees’ work hours. Regardless, it is essential that supervisors demand prompt and accurate time reporting from employees. Every company should have a written policy in place that prohibits working off the clock, underreporting or overreporting hours worked, and working unauthorized overtime.

And remember, even if an employee works unauthorized overtime, the employee must still be paid for those hours, although they can face discipline for not obtaining prior permission. The most essential component is clear communication from an employer to its employees of when employees are to be on and off the clock.

Maintaining Teleworking Employee Productivity

With more employees working remotely, it is more important than ever to keep employees engaged and maintain productivity. Here are two suggestions for helping employees to remain engaged:

1: Communication

While this is undoubtedly an uncertain time for businesses, employers must recognize employees are faced with similar trepidations on an individual level. In the interest of building and keeping employees’ trust, employers should continually and effectively communicate with employees, especially when it comes to negative developments. Many employees working from home feel isolated, so regular check-ins from supervisors are advised. Nevertheless, employers should remain wary of not excessively micromanaging employees working from home, so employees have the space they need to accomplish daily tasks.

2: Flexibility

Employees who are working remotely for the first time will need at least some time to adjust. While expectations of maintaining productivity should be made clear to employees, employers should remain flexible in how individuals choose to remain productive, so long as their efficiency does not drop below acceptable levels. One recommendation is to allow employees some time away from their laptops to have time for their families and mental health.

Further, it is inevitable for some businesses that employees will have less work to perform considering the burdens of the pandemic. Rather than letting this down period be monotonous for employees, employers should encourage employees to use this opportunity to build important job skills and continuing education.

This is a difficult time for all businesses and individuals; however, with the right mindset, encouragement, and expectations, everyone can come out of this pandemic stronger.

Please contact your KDDK attorney or any KDDK labor and employment law professional for additional information and individualized guidance on this or any related topic.

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