Andrea M. Kirshenbaum of Post and Schell

As employers and employees try to put one foot in front of another during this extraordinary time, we have been bombarded by a range of daily challenges wrought by the pandemic. Many employers implemented work-from-home programs virtually overnight, which applied to exempt and nonexempt employees alike. Now that employers have their remote work programs up and running and as some employees have begun to return to the physical workplace, it makes sense to assess potential wage-and-hour pitfalls and ensure that additional practices have been put in place to mitigate against the risk of wage-and-hour claims. 

Potential Challenges Returning to the Physical Workplace

Many employers have put in place screening protocols while entering the physical workplace such as temperature checks. To the extent that nonexempt employees are standing in lines for a period of time every morning, employers have inquired about whether those employees need to be paid for that time. The answer to that question is everyone's favorite lawyerly answer—maybe. In 2014, the Supreme Court decided Integrity Staffing Solutions v. Busk, holding that post-shift security checks for warehouse workers were not compensable under the Fair Labor Standards Act (FLSA).  

Whether such waiting time is compensable under the Pennsylvania Minimum Wage Act (PMWA) remains an open question. A few months ago, the Pennsylvania Supreme Court agreed to answer the following certified question: Is time spent on an employer's premises waiting to undergo and undergoing mandatory security screening compensable as "hours worked" within the meaning of the Pennsylvania Minimum Wage Act? The court also has agreed to determine whether the de minimis doctrine applies to bar such claims under the PMWA.  

Given this uncertainty, employers should closely monitor the amount of time employees may be waiting in screening lines and put in place measures to reduce that time to the maximum extent feasible. Although it may be difficult to consider this given the current economic climate, employers could of course pay employees for this waiting time to avoid the potential legal issue. In terms of ways to reduce any potential waiting time, many employers have put in place measures including staggered start times and rotating days for certain staff members and teams to be in the physical office.  

The Skeleton Office Staff and Rapidly Evolving Composition of the Workforce

For those essential businesses where employees could work remotely but continued to have some staff on site, it generally was composed of a small group of mission-critical staff—both exempt and nonexempt. In some instances, those exempt staff were called upon to perform tasks that pre-pandemic they ordinarily would not. As we all try our best to settle into the "new normal," employers should keep in mind that in order to maintain the exempt status of employees, those employees must continue to perform the primary duties required of their particular exemption (i.e., executive, administrative or professional). To the extent that those employees are no longer called upon to perform their pre-pandemic primary duties (for example an employee classified as exempt under the executive exemption whose direct reports have been laid off), employers should assess whether the affected employees should be reclassified as nonexempt or be assigned other duties that would qualify the employees for different exemptions.

Salary Reductions and Maintaining the Minimum Salary Level Required to Remain Exempt

As an alternative to employee layoffs (or in some instances in addition to employee layoffs), many employers have put in place pay reductions. Employers also have reduced the number of hours of certain employees due to a lack of work during the pandemic. Employers should keep in mind that all employees classified as exempt under the FLSA must continue to be paid the minimum salary of $684 per week, which equates to $35,568 per year (employers can continue to pay 90% of this amount so long as employees are paid the remaining amount in incentive compensation by the end of the year). Some employers operate under the misimpression that if an exempt employee works "part time," it does not need to pay the minimum salary level because of that part-time status, which is incorrect.

Many employers also have reduced the number of hours being worked by nonexempt staff as a means of conserving resources and, in some cases, due to a reduced workload. Employers should be vigilant that employees with reduced hours are truly working their reduced schedules in order to mitigate against the risk that employees work "off the clock."  

Continuing Challenges of Nonexempt Staff Working Remotely

Given the sudden shift to remote work for hundreds of thousands of nonexempt employees, employers in many instances did not have the time to develop robust protocols to guard against "off-the-clock" remote work by nonexempt employees. Employers that continue to employ nonexempt remote workers should consider implementing the following:

• Try to mirror the set schedules that were in place in the physical workplace. The line between home and work is blurrier than ever. Nonexempt employees should continue to have set schedules. Co-workers should resist the urge to communicate with nonexempt employees outside of their set schedule.
• Everyone should be on the same page. Both nonexempt employees and the exempt employees they report to should be aware of the required timekeeping protocols and ensure that they are being followed.
• Nonexempt employees should record their time daily and routinely certify that they are reporting all time worked. If necessary, employers should consider updating their timekeeping systems to provide for electronic timekeeping.
• Where nonexempt employees are using electronic equipment to perform their duties, employers should be periodically auditing to make sure that the time being reported by employees matches with the electronic data on employer devices.

There is an old English expression, "May you live in interesting times." I know we all would be ecstatic if these times were less interesting. As we all continue to try to find our new rhythm amid this global pandemic, employers thrust into remarkably different workplace norms should try to take a step back and work to ensure that they have put in place practices that mitigate against wage and hour risk. As they say, an ounce of prevention is worth a pound of cure and that is, of course, what we are striving for right now, a cure.

Andrea M. Kirshenbaum is the chair of Post & Schell's wage-and-hour practice group, a principal in its employment and employee relations and labor practice groups, and a member of the firm's appellate department. Contact her at [email protected].