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It’s hard to believe that I’ve been working from home for an entire year. I almost cannot believe what I’m writing! And I know I’m not alone.
In the midst of the pandemic, so many of us are working from home. And not just working from home, but a good number of us are juggling virtual school for our children while we work at home. (Please send wine!) Although I do not have a crystal ball (I wish I did!), I think by the summer or fall we will all have some relief (fingers crossed!).
Until then, many parents are continuing to deal with child care issues and working from home. Because of this and for varying reasons, many employees are working more flexible schedules from home. For example, to assist with virtual school, an employee may be working between 6:00 a.m. and 9:00 a.m., between 3:00 p.m. and 6:00 p.m., and between 9:00 p.m. and 11:00 p.m.
The question that employers consistently face is: How do we correctly pay non-exempt employees working flexible schedules from home? Here’s the answer—at least for now:
The U.S. Department of Labor (“DOL”) adopted the “continuous workday” rule. The continuous workday rule provides that all time between an employee’s first and last “principal activity” is working time to be paid by the employer. There is an exception to the rule (and the employee does not need to be paid) for periods when the employee is completely relieved from duties and that are long enough to enable the employee to effectively use the time for his or her own purposes (usually at least 30 minutes for a meal break).
Because of the pandemic which forced many to work from home, in early 2020, the DOL suspended its continuous workday rule for employees working from home. In guidance released at the end of 2020, the DOL confirmed that it continues to relax the continuous workday rule for employees working from home.
The DOL has made clear that employers should do the following:
- Pay non-exempt employees for all time actually worked, including overtime. An employer is not required to compensate employees for unreported hours worked while working remotely for COVID-19-related reasons, unless the employer knew or should have known about the remote work.
- Keep track and accurately record the time worked by the non-exempt employee, including all start and stop times for each day worked.
- Agree in advance and in writing with the non-exempt employee on the alternative schedule and hours to be worked. Going back to my example with the employee assisting with virtual school, the following email or memo to the employee memorializing the agreement with the employee is suggested: This is to confirm that you have advised that you generally will be working the following schedule, Monday through Friday: between 6:00 a.m. and 9:00 a.m.; between 3:00 p.m. and 6:00 p.m.; and between 9:00 p.m. and 11:00 p.m. You generally will not be working between 9:01 a.m. and 2:59 p.m., and between 6:01 p.m. and 8:59 p.m. Be sure to record your actual hours worked every day and report those to your supervisor on a daily or weekly basis. You agree to accurately report your start and stop times every day.
Remember that there could be more restrictive state law requirements regarding compensable working time. (Florida does not have anything more restrictive.)
Here’s to hoping life gets a bit easier for everyone in the coming months, and virtual school for an extended period of time will be something we laugh about one day.