Stimulus packages and emergency legislation are swirling around and have had huge impacts on employment policies and rules. We’re all trying to stay on top of it and as HR, our attention has been focused on the new emergency sick leave, emergency FMLA, likely enhanced unemployment guidelines and, well, keeping employees calm and healthy from a mental aspect as well as physical. There’s so much!
Remember, labor guidelines of the past are applicable, and it is important to be on top of those, still. And the burden of a few of those shouldn’t lie solely on HR but should be spread to managers and supervisors as well. Specifically, the Fair Labor Standards Act (FLSA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) are important to keep in mind.
Let’s start with the FLSA. For those employers used to managing employees who work remotely, you’re probably already on top of this. In this time, however, so many employers have staff working from home consistently as a new setup, and how managers, supervisors and HR maintain oversight with respect to FLSA is important.
Nonexempt employees under FLSA must be paid for all time worked. If they are home and not working, there’s no need to pay them, but if they are, companies need to have a way to track their time. Short of doing something on the edge of creepy (tracking keystrokes), the Dept of Labor will accept a reasonable agreement between the company and nonexempt employees about their work hours, all based on the honor system. Even still, remember that the burden of record-keeping and timekeeping still falls on your shoulders as the employer.
An agreement, in writing, should cover things like:
- Relevant circumstances of employees’ work situation;
- Details about break/mealtimes, start/stop times;
- How employees will be working and accessible (tools such as phone, email, Slack, Google, Zoom, IM, etc);
- Expectations of work product;
- Reinforce company’s general policies regarding attendance and that they remain in affect;
- The employee’s responsibility to accurately report their working time, and seek supervisor’s permission for overtime (consistent with current policies);
- The employee’s responsibility to not alter company-provided computers or other equipment, or disclose confidential information;
- As the company, what (if any) payment will be made for tools/equipment needed for a work-from-home situation to be successful.
Employers should also keep an eye out for excess production from employees – they may be incredibly efficient while working from home, but likely an employee getting more than usual done has been working some overtime. Don’t ignore it! Managers and supervisors should be inquisitive about this and document the answer. Pay them if they did work overtime. If necessary, discipline can be used for violating the policy of not seeking permission first for overtime.
Exempt employees are also covered under FLSA and must be paid a guaranteed weekly salary in any week they work. In this case, telecommuting exemptions are much easier to deal with – simply, you pay them. If your office closes for the entire week, or they individually did not work at all during the week, no payment is required.
Another regulation that likely could come into play is USERRA. Governor Inslee was given the go-ahead by President Trump on March 22, 2020 to use the State’s National Guard, if needed, to assist in this pandemic crisis. With the high military population here in Washington, both active and reserve, employers need to refresh themselves on specific responsibilities under this legislation.
USERRA protects employment for those who voluntarily or involuntarily leave employment positions to undertake military service or other certain types of service in times of national disaster. Once these service-member employees are back into civilian work, they have the right to be reemployed if they:
- Ensured their employers received advanced written or verbal notice of their military service;
- Had five or fewer years of cumulative military service while with that specific employer;
- Returned to work or applied for reemployment in a timely manner;
- If they have been discharged, it must be honorably discharged.
Additionally, returning employees should be reemployed in the jobs they would have attained had they not been away for military service, with the same seniority, status and pay.
Senior leadership and HR professionals, as they are trying to stay abreast of the new components surrounding this health and economic crisis, have an opportunity to lean on the rest of their management team – empower supervisors and managers with the knowledge of these regulations so that they can keep a pulse on it as well, while you continue to figure out the hot-off-the-press aspects that continue to come.
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