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Pandemic Pay Issues For Wage And Hour Lawyers To Watch

Law360

Six months into the pandemic, wage and hour issues such as paying employees for commuting and for pre-shift safety protocols and the uncertainty of carveouts have emerged as top concerns for employment lawyers.

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Here, Law360 examines potential wage and hour pitfalls to watch out for.

Paying Employees for Commuting Time

As the pandemic stretches beyond the six-month mark for many people, measures that began in March that they expected to be short-term changes are now an indefinite reality. Two areas to watch involve how those transformations may affect what compensation employers owe under the FLSA.

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Many employers are offering work from home, and tech giants such as Facebook Inc., Twitter Inc. and Square Inc. have said they will let employees work remotely even after the pandemic subsides. When someone's home is their primary work location, employers may have to pay for trips to the office that they didn't have to before.

A Reliance on 'Emergency' Carveouts

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In light of the uncertainty and in the interest of minimizing the risk of exposure to an unpaid wages lawsuit, he recommends clients analyze whether workers are owed minimum wage and overtime without relying on the FLSA regulations' emergency provision.

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Christopher McNerney of Outten & Golden LLP, who represents workers, said there's a surefire way employers can make certain they stay on the right side of the law when there are questions about whether emergency circumstances excuse compliance with certain pay requirements.

"If you're concerned about compliance, pay your workers at least that floor," McNerney told Law360.

Paying for Safety Protocols

When employees return to workplaces, they won't be set up the same as before. The Occupational Safety and Health Administration recommends social distancing and screening employees for symptoms so that the coronavirus doesn't spread at work. Keeping elevators from getting too crowded and checking employees as they arrive can cause lines to form, so people may spend some time waiting to even get into the workplace.

The question is: is that time compensable? The FLSA doesn't require employers to account for trivial amounts of time, but attorneys who represent workers and management agree that employers can avoid a wage lawsuit by simply paying workers, even if it may not actually be required.

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McNerney, the worker-side attorney, said the easiest way for employers to make sure they comply with wage-and-hour requirements is to err on the side of paying people more than the law requires, not less.

"You pay workers for the time they spend protecting themselves, their coworkers, and the general public," McNerney said. "Especially now when we're in this society-wide crisis, it's not only the right decision. It's the moral decision."

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