The number of people working remotely — meaning away from their employer’s place of business — in New Jersey and around the country grew considerably after the pandemic began earlier this year. Many people continue to work remotely or virtually, while others have returned to something resembling their earlier workplace. It is probably too early to tell how the pandemic has changed, and will change, the workplace for people who are able to do their jobs at home. In August 2020, the Wage and Hour Division (WHD) of the U.S. Department of Labor issued a bulletin addressing questions about overtime laws and regulations. Field Assistance Bulletin No. 2020-5 (FAB 2020-5) advises employers on how to track remote employees’ time. It also offers useful guidance for remote non-exempt workers about what constitutes “work time” when they are not at an office or worksite.
The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees at a higher rate for any work performed beyond forty hours in a week. 29 U.S.C. § 207(a)(1). The overtime rate of pay is one-and-a-half times an employee’s usual wage. If an employee makes $20 per hour, and works fifty hours in a week, they should receive $30 per hour for their ten hours of overtime. The FLSA allows employees to file suit for damages if an employer violates the overtime provisions.
Certain employees are exempt from the FLSA’s overtime provisions. Workers in many exempted categories are unlikely to be able to do their jobs remotely, such as people employed in agriculture or fishing, amusement park employees, and seamen on foreign vessels. See id. at §§ 213(a)(3), (5), (6), (8). People who work “in a bona fide executive, administrative, or professional capacity,” however, might be able to telecommute, and are also exempt from overtime laws. Id. at § 213(a)(1).