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).
“Suffered or Permitted” to Work
WHD regulations offer guidance on when an employer must pay an employee for their time. An employee is entitled to wages, including overtime, in situations when they performed work that the employer did not request, but which it “suffered or permitted” to occur. 29 C.F.R. § 785.11. The regulations use an example of someone who continues to work past the end of their assigned shift. As long as they are performing their job duties, they must get paid.
This also applies to work that occurs offsite. If an employer “knows or has reason to believe” that an employee is doing work for them, such as when someone takes files home to continue to work on them at night, the employer “must count the time as hours worked.” Id. at § 785.12.
WHD’s Guidance on Remote Work
FAB 2020-5 affirms employers’ obligation to pay employees for work performed at home that is part of their jobs. This obligation applies regardless of whether the employer asked an employee to work late or do extra work, whether they wanted the employee to do it, or whether they have a rule or policy against doing extra work.
Employers may have policies against unwanted work or unapproved overtime, and they may enforce those policies. They may not, however, use violations of those policies as an excuse not to pay for time worked.
The knowledgeable and experienced employment attorneys at the Resnick Law Group are available to assist you in your wage and hour dispute with an employer in New Jersey or New York. To schedule a confidential consultation to discuss your rights and options, please contact us today online, at 973-781-1204, or at 646-867-7997.