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As part of the coronavirus threat, government and health authorities continue to encourage employers to allow employees to work from home and stress the importance of social distancing.
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! [[Federal and California Worker Adjustment and Retraining Notification Acts|< Previous ]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[Return-to-Work Considerations| Next >]]
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When the Stay at Home orders were enacted in mid-March many employers scrambled to make teleworking arrangements for their employees.  Those who didn’t have a formal teleworking policy in place made do as best they could.  Now that the dust has settled it’s important to understand the legal considerations of teleworking and to consider whether teleworking will continue to be an option available to employees as business opens up.
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=Establishing a Temporary Telework Policy=
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__TOC__
  
If your company has not already done so, employers should establish a policy for teleworking.  If your business hasn’t previously allowed teleworking as an option and you intend only to authorize teleworking during the stay at home period the policy does not have to be implemented as a formal part of an employee handbook.  It can be a stand-alone document or even an email addressed to those who are currently working from home.  Other employers may decide that teleworking will be a benefit offered when stay at home orders are lifted.  If so, policies should be drafted to reflect that new reality and these policies should become part of the employee handbook.
 
  
The policy should clearly address the following issues:
 
  
==Employees Expected Hours of Work and Timekeeping==
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Mindful of the coronavirus threat, government and health authorities continue to encourage employers to allow employees to work from home if possible.
  
Working from home under the stay at home orders may be challenging for some employees who are juggling child care issues, online schooling for their children, and the lack of a dedicated work space in their home.  While the FFCRA provides some relief through expanded FMLA leave for eligible employees if the crisis lasts much longer most workers will have exhausted that benefit and must determine how to effectively work from home with unexpected distractions.
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When stay-at-home orders were issued in mid-March, many employers scrambled to establish teleworking arrangements for their employees. Companies that didn’t have an established teleworking policy made do as best they could. Now that the dust has settled, it’s time to understand the legal implications of teleworking and to contemplate whether teleworking will remain a viable option as business opens up.
  
As a result, employers are encouraged to be flexible in the definition of the work day and work hours, if possible.  For example, allowing employees to manage their own workday and work hours and allowing them to work outside normal business hours.  Again this may not be feasible for all workers and, if not, perhaps considering part time arrangements or alternative schedules that would allow employees to care for their families and other obligations and continue working in some capacity.  Creativity at this time is encouraged.  Once the crisis is over work schedules can return to normal.
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==Establishing a Telework Policy==
  
A flexible schedule may work most effectively with exempt employees who aren’t subject to timekeeping requirements and overtime. However, there are rules with respect to how exempt employees must be paid. These rules are discussed below in the section titled Payment of Exempt Employees While Teleworking.
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If your company has not done so, establish a policy for teleworking. If teleworking is new to you, and you intend to support it only during the stay-at-home period, the policy needn't be implemented as a formal part of the employee handbook. It may be a stand-alone document, or even a group email to staff currently working from home. Some employers might decide to make teleworking a new benefit after stay-at-home orders are lifted. In such cases, policies should be drafted for that benefit, and be integrated into the employee handbook.
  
If an employer allows its non-exempt employees to work a flexible schedule it must consider the wage and hour implications of doing so.  The California Labor Code only requires employers to pay hourly non-exempt employees for hours they actually work, including any overtime hours worked.  Therefore, employers must have an accurate means for tracking all time that hourly employees worked.  This means that employees need to record and be encouraged to report all start and stop times, at the beginning and end of each day, at the beginning and end of all meal periods, and for all work performed outside the normal workday (for example, off hours work that could include text messages, telephone calls, and emails and tasks worked on after normal working hours).
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The policy should clearly address the issues discussed in the following subsections.
  
There are several strategies that can be implemented to maximize accurate time reporting and to maximize productivity for teleworkers.  Employers should require that employees punch in and out for meal breaks and monitor employees to be sure that their meal breaks are starting before the end of their fifth hour of work in any given workday.  Failure to take a timely meal break may result in penalties exactly like those the employer is subject to if the employee misses a meal break – one hour of pay for every late or missed meal break.  Teleworking policies must address the employer’s expectation about when meal breaks must be taken and the requirement that the employee clock in and out for each meal break.  Non-exempt employees should be instructed to take duty free meal breaks and not to multitask by working as a way to shorten the workday.  If a non-exempt employee’s shift ends after six hours its recommended that employers give these employees the option to waive their meal period.  The waiver should be in writing.
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==Work Hours and Timekeeping==
  
Finally, all non-exempt employees are entitled to rest breaks. Teleworking employees should be encouraged to take a 10 minute rest break for every four hours worked or substantial fraction thereof. Although employees need not clock out its important they are not discouraged from taking these breaks. If an employee feels they are unable to take the break because of employer pressure they could be entitled to a rest break premium one hour of pay for missed rest breaks.
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Working from home under the stay-at-home orders can be challenging for some employees who are managing child care, online schooling for their children and the lack of a dedicated workspace. Although the FFCRA provides some relief through expanded leave for eligible employees per the Family and Medical Leave Act, if the crisis lasts much longer, most workers will have exhausted that benefit, and must figure how to work effectively from home.
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When possible, employers should be flexible in how they define the workday and work hours. For example, they could allow employees to manage their own time, which might include working outside normal business hours. That isn't feasible for all workers, so working part time, for example, might allow such employees to care for their families and fulfill other obligations while continuing to work in some capacity. Employers who are creative now can retain valued employees and return to normal operations once the crisis passes.
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A flexible schedule might be most effective with exempt employees who aren’t subject to timekeeping requirements and overtime. But there are rules about how exempt employees must be paid. They are discussed in the subsection below, Compensating Exempt Employees Who Telework.
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If an employer allows nonexempt employees to work a flexible schedule, it must be mindful of the wage-and-hour implications. California's Labor Code requires employers to pay hourly nonexempt employees only for the hours they actually work, including overtime. So employers must have an accurate means of tracking all the hours those employees work. And employees must record their start and stop times every day, when they break for meals, and for all work performed outside the normal workday (for example, off-hours work involving text messages, telephone calls, emails, etc.).
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Teleworking policies must address when meal breaks be taken, and that the employee is required to clock in and out for each such break. Nonexempt employees should be instructed to take job-free meal breaks; that is, they should not eat while working in order to shorten the workday. There is no time clock at home, but there are computer programs to track logging in and out.
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Several strategies can accurately report time and maximize teleworker productivity. Workers punching in and out for meal breaks enables employers to ensure that their meal breaks begin before the end of the fifth hour of work in any given workday. Failure to take a timely meal break could result in employer penalties like those to which it's subject if an employee misses a meal break –– one hour of pay for every late or missed meal break.
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If a nonexempt employee’s shift ends after six hours, employers should give him or her the option to waive the meal period. The waiver should be in writing.
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All nonexempt employees are entitled to rest breaks. Encourage teleworking employees to take a 10-minute rest break for every four hours worked, or close to it. Employees needn't clock out during that interlude, but they shouldn't be discouraged from taking a break. If an employee feels unable to take a break because of employer pressure, he or she could be entitled to a rest-break premium –– one hour of pay for missed rest breaks.
  
 
==Overtime==
 
==Overtime==
  
For almost all non-exempt private sector California employees who are not covered by collective bargaining agreements, overtime pay is based primarily on the number of hours worked in a day.  Non-exempt employees earn overtime pay based on hours worked each day and each workweek. Daily overtime pay requirements are as follows:
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For almost all nonexempt private sector California employees who are not covered by collective bargaining agreements, overtime pay is based primarily on the number of hours worked in each day and each workweek. Daily overtime pay requirements are:
  
·      You must pay 1.5 times the employee’s regular rate of pay for:
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<ul>
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<li>1.5 times the employee’s regular rate of pay for:</li>
  
-All hours worked beyond eight in a single day.
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<ol type="a">
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<li>all hours worked in excess of eight in a single day</li>
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<li>the first eight hours worked on the seventh consecutive day in a single workweek</li>
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</ol type="a">
  
-The first eight hours worked on the seventh consecutive day in a single workweek.
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<li>double the employee’s regular rate of pay for:</li>
  
·      You must pay double the employee’s regular rate of pay for both.
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<ol type="a">
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<li>all hours worked in excess of 12 in a single workday</li>
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<li>all hours worked in excess of eight on the seventh consecutive day work in a single workweek</li>
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</ol type="a">
  
-All hours worked beyond twelve in a single workday.
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</ul>
  
-The hours work beyond eight on the seven consecutive day work in a single workweek
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Employees also are entitled to weekly overtime –– employers must pay employees 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 straight-time hours (defined as the usual number of hours and the usual amount of pay for a period of work) in a workweek. Only hours worked at straight time apply to the weekly 40-hour limit. Employees are entitled to daily overtime or weekly overtime, whichever is greater.
  
Employees are also entitled to weekly overtime, meaning employers are required to pay employees 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 straight time hours in a workweek.  Only hours worked at straight time applied to the weekly 40-hour limit.  Employees are entitled to daily overtime or weekly overtime whichever is greater.
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An exhaustive review of overtime requirements is beyond the scope of this guidebook; employers should familiarize themselves with overtime rules and regulations in drafting teleworking policies for their nonexempt employees.
  
An exhaustive review of overtime requirements is beyond the scope of this guidebook, but employers are encouraged to familiarized themselves with overtime rules and regulations in drafting teleworking policies for their non-exempt employees.
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==Other Wage-and-Hour Considerations for Nonexempt Teleworkers==
  
==Other Wage and Hour Considerations for Non-Exempt Teleworkers==
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If employers permit flexible scheduling for nonexempt workers, they must consider the effect of split shifts. A split shift is any two distinct work periods separated by more than a one-hour meal period. If the interval between shifts is more than one hour, the employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 4 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref>
  
If flexible scheduling is allowed for non-exempt workers, employers need to consider the effect of split shifts.  A split shift is any two distinct work periods separated by more than a one hour meal period.  If there is more than one hour between shifts, the employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.  IWC Wage Orders section 4(c).  The minimum wage rate is based on the state’s minimum wage, or the local minimum wage, whichever is greater. Case law has held split shift premiums aren’t due if total pay for the day is at least minimum wage for all hours worked plus an additional hour at minimum wage. Aleman v. AirTouch Cellular (2012) 209 Cal.App 4th 556. Importantly, no split shift is owed if the employee requests that a split shift be for their own convenience. IWC Wage Orders section 2. Therefore, if your business allows employees to create or request a flexible schedule be sure that they put the request in writing to avoid having to potentially pay a split shift premium.  The calculation of split shift premiums is complicated and you are encouraged to contact us should you have questions on this topic.
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The minimum wage rate is based on either the state’s minimum wage or the local minimum wage, whichever is greater. Case law has held that split-shift premiums aren’t due if total pay for the day is at least minimum wage for all hours worked, plus an additional hour at minimum wage.<ref>''Aleman v. Airtouch Cellular'' (2012) 209 Cal. App 4th 556</ref> Note: no split shift pay is owed if the employee requests to work that schedule for his or her own convenience.<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref> So, if your business allows employees to create or request a flexible schedule, be sure that they do so in writing to avoid having to pay a potential split-shift premium.
  
Reporting time pay must also be considered for non-exempt employees who are able to work flexible schedules.  Reporting time pay is designed to discourage employers from requiring non-exempt employees to report to a job unless there is work to be done.  Typically, reporting time pay is owed when an employee reports to work only to find there is no work or he/she is given less than half of the hours he/she was scheduled for or usually works.  Reporting time pay for these situations is at least half of the hours he/she was scheduled or usually works, but never less than two hours pay and never more than four hours pay.  IWC Wage Orders section 5.  It is unclear whether reporting time would be due for non-exempt teleworking employees as they are not required to technically return to the workplace after a shift ends nor to technically “report” to work only to find there is insufficient work available.  However, given the uncertainty employers should at least consider the potential ramifications of the application of reporting time pay requirements.
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Calculating split-shift premiums is complicated; employers should contact us with questions on this topic.
  
The Division of Labor Standard Enforcement (DLSE) advises employers that reporting time pay be required when non-exempt employees are required to attend meetings on a day they aren’t scheduled to work or meeting attendance is required after the employee’s regular shift has ended and they had to return.  Employers should be mindful of when they call meetings and expect their non-exempt employees to attend and endeavor to do so during the employee’s work day. The availability of flexible scheduling for non-exempt employees may affect whether reporting time pay is owed.  DLSE Enforcement Policies and Interpretations Manual section 45.1.2. Reporting time pay is not required when work is interrupted by an act of God or other causes not within the employer’s control, among other minor exceptions. IWC Wage Orders section 5.   when While the initial crisis and stay at home orders may have fallen into the category of “an act of God or causes outside the employer’s control” the on-going crisis likely would not be considered an exception because businesses have had the opportunity to regroup and fashion policies and practices applicable to their teleworking employees.
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Employers might consider reporting time pay also for nonexempt employees working flexible schedules. That practice discourages employers from requiring nonexempt employees to report to a job unless there is work to be done. Typically, reporting time pay is owed when an employee reports for work but there is no work, or he or she is given less than half of the hours for which the worker was scheduled or usually works. Reporting time pay for these situations is at least half of the hours scheduled or usually worked, but never fewer than two hours' pay or more than four.<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 5 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref>
  
On call and standby pay may also be considered for teleworking non-exempt employees.  If your business requires non-exempt employees to work on an on call or standby status, that time may qualify as hours worked, depending on how much you restrict his/her ability to actually have free time.  Hours worked is defined as “the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether required to do so or not.”  IWC Wage Orders section 2.  If an employee is under the employer’s control he/she must be paid even if the employee is sitting around waiting for something to happen.  This is called “controlled standby”. On the other hand, on call time is not compensable if the employee can use the time spent on call for his/her own benefit. This is referred to “uncontrolled standby”.  IWC Wage Orders section 2(K).  There are separate rules for health care industry.  The factors to be considered in determining whether an employee is on controlled standby and therefore must be paid include:  (1) whether there are excessive geographical restrictions on employees’ movements; (2) whether the frequency of calls is unduly restrictive; (3) whether a required response time is unduly restrictive; (4) whether the on-call employee can easily trade his on-call responsibilities with another employee, and (6) the extent of personal activities engaged in during on-call time. Madera Police Officers Assoc., v. City of Madera (1984) 36 Cal. 3d 403.  The simple requirement that the employee carry a cell phone, pager or beeper, standing alone, does not require that the employee be paid for all the hours the device is on. Additionally, the DLSE does not take the position that simply requiring the employee to respond to call backs is so inherently intrusive as to require a finding that the employee is under the control of the employer. If the teleworker is free to do whatever he/she choses at home while waiting for the call to begin work, wages are probably not due for that time.  Employers who have workforces that are on call or required to stand by need to have teleworking policies that expressly address the employee’s ability to use the on call time for his/her own purposes.
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It's unclear whether reporting time would be due for nonexempt teleworking employees, as they are not required, technically, to return to the workplace after a shift ends nor, technically, to “report” to work only to find insufficient work available. But given the uncertainty, employers at least should consider the potential ramifications of reporting time pay requirements.
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The California Division of Labor Standard Enforcement (DLSE) advises employers that reporting time pay be required when nonexempt employees are directed to attend meetings on a day they're not scheduled to work, or if meeting attendance is required after the employee’s regular shift has ended and the worker must return to work. If employers call meetings and expect nonexempt employees to attend, they should try to schedule them during the employees’ workday.
  
Any expected productivity standards; connectivity and logistical issues (such as logistics for turning in work, conference calls, and online meetings); and parameters for bringing work documents home, including employees continued adherence to confidentiality and data security protocols.
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The availability of flexible scheduling for nonexempt employees might affect whether reporting time pay is owed.<ref>DLSE Enforcement Policies and Interpretations Manual Section 45.1.2</ref> Pay is not required when work is interrupted by an act of God or other causes not within the employer’s control, among other minor exceptions.<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 5 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref> Although initially the pandemic crisis and stay-at-home orders might have qualified as “an act of God or causes outside the employer’s control,” the ongoing crisis probably would not be considered an exception because businesses have had the opportunity to regroup and fashion policies and practices for their teleworking employees.
  
The policy will be subject to re-evaluation and modification at will, in the employer sole discretion. Once the pandemic subsides, the policy may be terminated and employee attendance at the workplace will be considered an essential job function.
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On-call and standby pay also might be considered for teleworking nonexempt employees. If a business requires nonexempt employees to work on call or standby, the waiting time might qualify as hours worked, depending on how much you restrict their ability to have free time. Hours worked is defined as “the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether required to do so or not.”<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref> If an employee is under the employer’s control, he or she must be paid even if the worker is sitting around waiting for something to happen. This is called “controlled standby.
  
As already noted, not all jobs are conducive to teleworking. It is permissible to offer teleworking to some, but not all employees. For instance, there is no meaningful work for bank tellers to perform from home, but bank administrative workers (for example, Human Resources) may be able to transition to working from home. In selecting who can work from home, employers need to be careful not to discriminate on the basis of race, gender, age, or other legally protected characteristic. For example, employers should not mandate that all employees over the age of 60 must work from home, although employers may give certain employees the choice to work from home as long as that option is not being offered on a discriminatory basis.
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On-call time, however, is not compensable if the employee can use the waiting time for his or her benefit. This is referred to “uncontrolled standby.”<ref>Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf</ref> There are separate rules for the health-care industry.
  
==Payment of Exempt Employees while Teleworking==
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The factors for determining whether an employee is on controlled standby and, therefore, must be paid include:
  
In order for California employees to be considered exempt they must generally meet strict job duties tests particular to each exemption and meet minimum salary requirements.
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<ul>
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<li>whether there are excessive geographical restrictions on the employee's movements;</li>
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<li>whether the frequency of calls is unduly restrictive;</li>
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<li>whether a required response time is unduly restrictive;</li>
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<li>whether the on-call employee easily can trade the responsibility with another employee; and</li>
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<li>the extent of personal activities engaged in during on-call time.<ref>''Madera Police Officers Assn. v. City of Madera'' (1984) 36 Cal. 3d 403</ref></li>
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</ul>
  
The minimum monthly salary requirement for exempt executive, administrative and professional employee is no less than two times the State minimum wage for all full-time employment.  The employee must earn a fixed salary that isn’t subject to change based on productivity or hours worked.  Minimum wage is based on the current State minimum wage rate, not any applicable local minimum wage. Accordingly, in 2020 minimum salary threshold for these exemptions is as follows:
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The simple requirement that the employee carry a cellphone, pager or beeper does not mean that he or she must be paid for all hours the device is on. In addition, the DLSE does not take the position that requiring an employee to respond to calls is so inherently intrusive as to find that he or she is under the employer's control. If the teleworker is free to do whatever he or she chooses at home while awaiting a call to begin work, wages probably aren't due for that time.
  
•      For employers with 25 or fewer employees the State minimum wage is $12.00 per hour and accordingly the minimum monthly salary for these exemptions is $4,160.00 per month.
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Employers with an on-call or standby workforce, must implement teleworking policies that expressly address workers' ability to use the on-call time for their own purposes.
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The policy should address: expected productivity standards; connectivity and logistical issues (such as how to submit work and engage in conference calls and online meetings); and parameters for bringing work documents home, mindful of their adherence to confidentiality and data security protocols.
  
•      For employers with 26 or more employees, the State minimum wage is $13.00 per hour, accordingly the monthly minimum wage salary is $4,506.67 per month for these employees.  Employees who fall within the computer professional exemption or the outside sales exemption are subject to differing salary requirements and employers are encouraged to review the salary requirements, especially when employees are teleworking.
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The policy should be subject to re-evaluation and modification at will, in the employer's sole discretion. Once the pandemic subsides, the policy might be terminated if employee presence at the workplace is essential.
  
In addition, exempt employees must meet strict job duties test as defined by the specific exemption. The executive, professional, and administrative exemptions all require employees to perform exempt duties more than 50% of the time. One common requirement is that exempt employees must customarily and regularly exercise discretion and independent judgement.  DLSE Enforcement Policies and Interpretations Manual §51.5.  The discretion and independent judgement requirements have been subject to extensive litigation and employers who have questions whether or not their exempt employees are performing exempt duties under the duties test requirements are encouraged to contact us for evaluation.
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As noted, not all jobs are conducive to teleworking. Employers may offer teleworking to some workers, but not all: Bank tellers, for example, can perform no useful work functions from home, but bank administrative workers might be able to work in that setting. In selecting who may work from home, employers must take care not to discriminate on the basis of race, gender, age or other legally protected characteristic. For example, employers should not mandate that all employees older than 60 must work from home, although they may give certain employees that choice as long as the option is not offered on a discriminatory basis.
  
In addition, employees considered exempt must receive a salary and the salary must be a predetermined amount paid each pay period.  The amount cannot be reduced because of variations in the number of hours worked or the quality of the work perform.
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==Compensating Exempt Employees Who Telework==
  
These rules are important for businesses to consider during the pandemic as exempt employees who are teleworking may be performing more non-exempt duties than normal, and employers should ensure that their exempt employees do not fall below the mandatory 50% or more time spent on exempt duties. Moreover, many businesses have reduced employees’ salaries to combat financial losses resulting from the pandemic and while that is sometimes permitted if certain standards are met, employers must ensure the reduction in salary does not cause the employee to fall below the salary requirement as set forth above. If the employee’s reduction in salary causes them to fall below the monthly minimums, the employee will automatically be considered a non-exempt employee regardless of the job duties he or she performs. This means the employee will be eligible for overtime and will require meal and rest breaks. Therefore, it is important that employers consider how their employees are spending their time while teleworking and remain mindful of the minimum salary requirement for their exempt employees.
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For California employees to be considered exempt, generally they must meet strict job duty tests specific to each exemption, as well as meet minimum salary requirements.
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The minimum monthly salary for exempt executive, administrative and professional employees is no less than two times the state minimum wage for all full-time employment. Exempt employees must earn a fixed salary not subject to change based on productivity or hours worked. Minimum wage is based on the current state –– not local –– minimum wage. In 2020, the minimum salary threshold for these exemptions is:
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<ul>
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<li>For employers with 25 or fewer employees, the state minimum wage is $12 per hour; the minimum monthly salary is $4,160.</li>
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<li>For employers with 26 or more employees, the state minimum wage is $13 per hour; the minimum monthly salary is $4,506.67.</li>
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</ul>
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Employees who fall within the computer professional exemption or the outside sales exemption are subject to different salary requirements.
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The job duty test for exempt employee classification depends on the specific exemption.  The executive, professional and administrative exemptions all require employees to perform exempt duties more than 50% of the time. One common requirement for exempt status is that employees must customarily and regularly exercise discretion and independent judgment.<ref>DLSE Enforcement Policies and Interpretations Manual Section 51.5</ref> Such judgment has been subject to extensive litigation, so employers that question if their exempt employees are performing exempt duties under the test requirements should seek a legal evaluation.
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Employees considered exempt must receive a salary, and it must be a predetermined amount paid each pay period. The amount may not be reduced because the worker's hours or performance varied from period to period.
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During the pandemic, businesses must understand these rules, as exempt employees who are teleworking might be performing more nonexempt duties than normal, and employers should ensure that they don't fall below the mandatory 50% of time spent on exempt duties. Many businesses have reduced employee salaries as a result of financial losses from the pandemic. That might be permitted if certain standards are met, but employers must take care that those salaries don't fall below the threshold discussed above. If that happens, the employee automatically will be deemed a nonexempt employee regardless of his or her job performance. Nonexempt status confers eligibility for overtime, and requires meal and rest breaks. So it's vital that employers know how their employees are spending their time while teleworking, and the minimum salary for that classification.
  
 
==Expense Reimbursement While Working at Home==
 
==Expense Reimbursement While Working at Home==
  
Employers must reimburse employees for all monies they expend or lose, directly relayed to performing their duties or following the employer’s instructionsLabor Code section 2802.
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Employers must reimburse employees for all monies they expend or lose directly related to performing their duties or following the employer’s instructions, per Labor Code § 2802.
  
In addition to more obvious required reimbursements like mileage, travel and dining expenses there are other expenses that must also be reimbursed especially to teleworking employees. An employer must reimburse and employee for the employee is required to use his or her personal cell phone to make work related calls. It’s likely that employees, now required to telework, are using their personal cell phones to conduct the employers business. A court has held that an employer must pay “some reasonable percentage” of the employee’s cell phone bill to comply with the Labor Code. Cochran v. Schwan’s Home Service, Inc., (2014) 228 Cal.App. 4th 1137.  Unfortunately there is no guidance as to what constitutes a “reasonable percentage” but, if an employee is teleworking and making calls with his or her personal cell phone a reasonable percentage is at least half the cell phone bill.  Many employers have established flat reimbursement amounts for the employee’s use of their personal cell phone.  For example, reimbursing all teleworking employee’s $100 per month for cell phone usage may be reasonable and be administratively expedient.
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In addition to standard reimbursements such as mileage, travel and meal expenses, other expenses pertaining particularly to teleworkers must be reimbursed. An employer must reimburse an employee if he or she is required to use a personal cellphone to make work-related calls. Employees now required to telework probably use their personal cellphones in the service of their employers. One court held that an employer must pay “some reasonable percentage” of the employee’s cellphone bill to comply with the Labor Code.<ref>''Cochran v. Schwan’s Home Service, Inc.,'' (2014) 228 Cal. App. 4th 1137</ref>
  
Employers should also reimburse a portion of a teleworking employee’s internet expense. Again, many employers have found it administratively beneficial to reimburse each teleworking employee a fixed amount each month to cover the employee’s use of their personal internet for business use.
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Unfortunately, there is no guidance as to what constitutes a “reasonable percentage,” but if a teleworking employee uses his or her cellphone in the course of the workday, a reasonable percentage is at least half of the cellphone bill. Many employers have established flat reimbursement amounts for employee use of their personal cellphones. Reimbursing all teleworking employees $100 per month for cellphone use, for example, might be reasonable and administratively expedient.
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Employers also should reimburse a portion of a teleworking employee’s internet expense. Here, too, many employers have found it administratively wise to reimburse each such worker a fixed amount each month for the business use of his or her personal account.
  
In addition, employees may be asked to use their personal computer and printer to perform work.  If this is the case, employers may need to provide reimbursement for the wear and tear on the equipment and to pay for paper or other office products the employee buys to perform work at home. Similar to a car allowance, employers might consider paying employees a set amount for use of their computer equipment. Employees should be encouraged to keep receipts of reasonable office expenses and instructed how to submit the receipts for reimbursement.
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If employers ask their teleworkers to use their personal computer and printer, reimbursement might be in order for supplies and equipment wear and tear. Similar to a car allowance, a set allowance might be set for employee use of their computer equipment. Teleworkers should keep receipts of reasonable office expenses and instructed how to submit them for reimbursement.
  
Failure to properly reimburse employees for expenses can open the employer up to penalties and legal action under the Private Attorney General Act (PAGA).
+
Under the Private Attorney General Act (PAGA), failure to properly reimburse employees for reasonable expenses can open up employers to penalties and legal action.
  
==Potential Disability Considerations==
+
==Potential Disability Issues==
  
Employers must also consider disability accommodation issues when employees are teleworking. If an employee has a disability-related accommodation at work (for example, taking additional breaks or using an ergonomic keyboard or chair), employers need to consider how they will provide the same accommodations for an employee working at home, subject undue hardship considerations.  Although the EEOC has loosened its regulations relating to accommodating disabilities while teleworking during the pandemic, it is important that employers follow their policy and procedure with respect to requiring doctor’s notes, engaging in the interactive process, considering all alternatives that might effectively accommodate the employee, and making an effort to provide accommodations while the employee is teleworking.  Disability and accommodation considerations are covered in depth in the section above titles Disability and Reasonable Accommodations under the Americans with Disabilities Act and the Department of Fair Employment and Housing Act.
+
Employers must consider disability accommodation issues when employees are teleworking. If an employee has a disability-related accommodation at work (for example, taking additional breaks or using an ergonomic keyboard or chair), employers should determine how to provide the same accommodations for that teleworking employee, subject to undue business hardship considerations.
  
==Monitoring Productivity and Communications==
+
Although the EEOC has loosened its regulations for accommodating the disabilities of pandemic teleworkers, employers still must follow their policy and procedures for: securing doctors’ notes; engaging in the interactive process; considering alternatives; and making an effort to provide accommodations while the employee is teleworking. Disability and accommodation considerations are discussed in-depth in the previous sections, Disability and Reasonable Accommodations Under the Americans with Disabilities Act & the Fair Employment and Housing Act.
  
Employers should consider how it will monitor employee productivity while teleworking.  One important step is to remind employees that employers may monitor employees and they shouldn’t expect privacy when they perform work for the company and that the company may monitor their actions during the workday.
+
==Monitoring Productivity and Communication==
  
Most employee handbooks allow employers to monitor employee work and communications performed on its’ equipment including reviewing email, work product, and internet sites visited.  If your company does not have a policy that allows employers to monitor this type of employee activity, it is critical that you implement such a policy to avoid the appearance and argument that the employee had a reasonable expectation of privacy in using the employer’s system and the employer violated privacy rights by monitoring employees use of these systems.
+
How do businesses monitor productivity when employees are teleworking? They can and should track work progress, but they also must remind employees not to expect privacy when they work from home –– companies may monitor their actions during the workday.
  
It is also important to determine how employers will measure productivity while its employees are teleworking.  Will the employer require daily check-ins from employees to update supervisors and managers as to tasks accomplished?  Will conference calls be utilized to ensure employees are completing tasks and understand instruction?  Monitoring productivity will depend entirely on the employer’s business and the employee’s job position.  As a result, productivity measurements will look different for each industry and each employer.  Indeed, because schools are closed and children are at home completing school online, employees may face challenges with childcare and productivity during the pandemic. Therefore, employers will need to remain flexible in their expectations of the workday, productivity and hours worked. Employees may not have dedicated work areas in their homes and may face distractions in terms of timeliness of execution of regular tasks and other disruptions of ordinary work functions.  Employers are encouraged to have flexible teleworking policies during this time period to enable employees to handle family responsibilities while also attending to work tasks. Keeping in mind the wage and hour issues that may arise from such flexibility.
+
Most employee handbooks make clear that communications performed on company equipment, including email, work product and internet site visits, may be monitored. If your company has not communicated such a policy, do so before implementing teleworking operations. These policies diffuse claims that employees had a reasonable expectation of privacy in using the employer’s system, and that it violated privacy rights by monitoring employees' use of it.
  
Employers should attempt to provide the resources employees need to work from home effectively using company provided equipment, like computers and telephones. Where this is not possible, employers should evaluate the personal tools and equipment the employee is required to use on the employer’s behalf and determine whether and to what extent reimbursement for associated expenses may be necessary.
+
It's also important to determine how to measure the productivity of teleworking employees. Will the employer require daily employee check-ins to report the progress of their assignments to supervisors? Will conference calls be initiated to ensure employees understand instructions, and report progress?
  
==Occupational Safety and Health==
+
How best to monitor productivity depends on the nature of the business and the employee’s job duties. So productivity measures will look different for each industry and each employer.
  
OSHA and Cal/OSHA obligate employers to provide a workplace that is free from recognized hazards likely to cause harm, even when working from home. Employers should encourage employees to review their work area and ensure that it is free from tripping, electrical or other hazards that might pose a danger to employees. Indeed, some injuries that occur at home while an employee is performing services for the employer may be compensable under workers’ compensation. This topic is covered extensively in Sullivan on Comp Chapter 5 and in this guide under section Working from Home.
+
Because schools are closed and children are at home (often taking classes online), employees might be juggling child care with their job responsibilities during the pandemic. Employers should remain flexible about the nature of the workday and the hours worked, and how productive a worker can be in a given work period. Employees might not have dedicated work areas in their homes; they might be interrupted and distracted as they work. Flexible teleworking policies during the pandemic can benefit employers by enabling employees to handle family responsibilities during otherwise normal workdays, as long as they're mindful of wage-and-hour issues.
  
==Employee Personnel Records==
+
Employers should provide resources employees need to work from home effectively, such as computers and telephones. If that's not possible, they should evaluate employees' personal equipment they must use on the employer’s behalf, and determine if and how to reimburse these business expenses (see the subsection above, Expense Reimbursement While Working at Home).
  
Employers should remind employees to update their home address and contact information, so supervisors and managers can easily communicate with them. Employers should also consider setting up an internal website and team and/or company-wide distribution lists for information sharing.
+
===Occupational Safety and Health===
  
==Protect Confidential and Proprietary Information==
+
OSHA and Cal/OSHA obligate employers to provide a workplace free from recognized hazards, even when working from home. Employers should ask employees to review their work area to ensure that it is free from tripping, electrical or other hazards. Sometimes, injuries that occur at home while an employee is working may be covered under workers’ compensation. This topic is discussed extensively in "Sullivan on Comp" [https://app.sullivanoncomp.com/soc/index/title/Chapter%205 Chapter 5: Injury], and in this guide's [[Injuries at Home or Due to the Home Office]].
  
Be sure to remind teleworking employees they remain obligated to protect company confidential and proprietary information.  This could mean requiring employees to work on the company’s servers and not on their own personal computer, not to save copies of documents to their personal computer and not to print documents at home considered confidential.  Depending on the type of business this could simply require reminding employees of their obligation but for other employees who work with a high level of confidential and trade secret information software or other protections may need to be implemented.
+
===Employee Personnel Records===
  
=Wage and Hour Enforcement and Penalties=
+
Employers should ensure that employee information is current for home address and contact information. Some employers might want to set up an internal website and team and/or companywide distribution lists for information-sharing.
  
It is important that businesses properly pay employees because, in addition to damages, penalties may be assessed for violating wage and hour laws.  The State Division of Labor Standards Enforcement (DLSE or Labor Commissioner) is charged with enforcing these laws and adjudicates wage claims.  Moreover, an employee may choose to bring a wage claim in civil court and, if successful, his or her attorney, may collect attorney’s fees from the employer.
+
===Protecting Confidential and Proprietary Information===
  
Failure to pay the minimum wage subjects the employer to fines and imprisonment, and restitution of the wages to the employee.  The Labor Commissioner can assess a civil penalty of $100.00 for each underpaid employee for each pay period during which the employer failed to pay minimum wage. For each subsequent intentional failure to pay the minimum wage, the penalty is $250.00.  Labor Code §1197.1
+
It's essential that businesses remind teleworking employees of their obligation to protect confidential and proprietary company information. Such protection might require employees to work on the company’s servers, not on their own personal computer, and not saving copies of documents to their personal computer, or printing them at home. Depending on the type of business and who is working remotely, a simple reminder to protect company confidentiality might be sufficient. For companies and workers managing trade secrets, for example, higher-level protections might be required.
  
The Labor Commissioner is also authorized to assess liquidated damages in an amount equal to the amount of the wages improperly withheld, plus interest.  In the past, employees could only obtain these damages through litigation.  The Labor Commissioner may issue a citation for a minimum wage violation and recover the civil penalty and wages.  The penalty for a citation includes payment for liquidated damages.
+
==Wage-and-Hour Enforcement and Penalties==
  
Moreover, unlawfully withholding wages or failing to pay the minimum wages is a misdemeanor. Any employee receiving less than the applicable minimum wage or the legal overtime compensation is entitled to file a lawsuit in court. The employee can win damages, penalties, liquidated damages, and attorneys fees making wage and hour actions incredibly expensiveTo make matters worse these types of actions are rarely covered by insurance.
+
The coronavirus has made teleworking common and, in some counties in California, teleworking is required for employees who can perform their jobs from home. Employers must use reasonable diligence in tracking the hours of nonexempt teleworkers just as if they were working from the office or workplace. The U.S. Department of Labor recognized the need for guidance, and issued [https://www.dol.gov/agencies/whd/field-assistance-bulletins/2020-5 Field Assistance Bulletin No. 2020-5] to assist employers in tracking and properly paying nonexempt teleworkers. The guidance has no new law or requirement, but reminds employers that teleworking employees must be paid for all hours they are scheduled to work and/or directed to work, but also must pay for all time an employee is permitted to perform ''unscheduled'' workMost employers understand they must pay for all time worked even if it wasn't authorized. Most commonly, this occurs when overtime is worked without prior authorization.
  
Beginning January 1, 2020, a new law gives employees the right to seek enforcement of these additional penalties. Under the new law, employees may bring a private action to either recover the statutory penalties in a hearing before the Labor Commissioner or bring a civil action under the Private Attorneys General Act. The Private Attorneys General Act is covered below.
+
Simply put, the employer must pay for all work it knows, or should know, is being performed.<ref>29 C.F.R.§ 785.11-12</ref>
 +
In a telework situation, it is much more difficult for employers to truly know when work is being performed. Actual knowledge may be derived from employees reporting they worked extra hours or a supervisor requesting work be done outside a regular work schedule. The guidance explains that employers must use reasonable diligence to determine all hours employees work. The reasonable diligence standard is based on what the employer "should" know, not on what the employer "could" know.
  
Individuals can be held personally liable for a company’s failure to comply with certain wage and hour laws. The Labor Commissioner’s authority to assess civil penalties for Labor Code and Wage Order violations extend not like to the employer, but to any “other person acting on behalf of the employer.”  Labor Code §558.  Individuals who may be personally liable for wage payments and penalties include the owner, directors, officers, and managing agents.  Labor Code §558.1(b).  These means  a court could allow a winning employee to collect the judgment from individuals if the business is unable to pay the judgment.
+
Employers needn't review IT records, phone records, or other documents to determine whether a nonexempt employee performed work on a particular day. Instead, the guidance suggests that employers have policies and forms instructing nonexempt teleworking employees what is expected from them in terms of hours worked, recording time, and working overtime without authorization. Employers should instruct workers to record all hours worked and should not discourage accurate and complete reporting or tell employees that any work performed outside of regularly scheduled hours will be not be paid. As is always the case, employers are advised to pay employees for the work performed, and to discipline employees who work unauthorized hours.
  
Labor Code §558.1 State that “any person acting on behalf of an employer can be held liable when he/she violates open (or causes to be violated) any of the following wage and hour laws:
+
Businesses must compensate employees properly, or risk being assessed penalties for violating wage-and-hour laws, and damages. The California Division of Labor Standards Enforcement (DLSE, or Labor commissioner) is charged with enforcing these laws and adjudicating wage claims. An employee may file a wage claim in civil court; if successful, his or her attorney may collect fees from the employer.
 +
Failure to pay the minimum wage subjects the employer to fines and imprisonment, and restitution of the wages to the employee. The Labor commissioner also may assess liquidated damages equal to the amount of the wages improperly withheld, plus interest. In addition, the commissioner may assess a civil penalty of $100 for each underpaid employee for each pay period during which the employer failed to pay minimum wage. For each subsequent intentional failure to pay the minimum wage, the penalty is $250.<ref>Labor Code § 1197.1</ref>
  
·      Minimum wages and any minimum wage provisions found in the Wage Orders;
+
Unlawfully withholding wages or failing to pay the minimum wages is a misdemeanor. Any employee receiving less than the applicable minimum wage or the legal overtime compensation is entitled to file a lawsuit in court. The employee might win damages, penalties, liquidated damages and attorneys' fees, making wage-and-hour actions potentially quite expensive. And these types of actions are rarely covered by insurance.
  
·      Any provision regulating hours and days of work found in the Wage Orders;
+
Beginning Jan. 1, 2020, employees have the right to seek enforcement of these additional penalties. Under the new law, they may bring a private action either to recover the statutory penalties in a hearing before the Labor commissioner, or bring a civil action under the Private Attorneys General Act (see the following subsection).
  
·      Timely payment of wages (Labor Code §203);
+
Individuals may be held personally liable for a company’s failure to comply with certain wage-and-hour laws. The Labor commissioner’s authority to assess civil penalties for Labor Code and wage order violations extends not only to the employer, but to any “other person acting on behalf of the employer.”<ref>Labor Code § 558</ref> Individuals who may be personally liable for wage payments and penalties include company owners, directors, officers and managing agents.<ref>Labor Code § 558.1(b)</ref> So, a court could allow a winning employee to collect the judgment from individuals if the business is unable to pay.
  
·      The required to provide a paystub/itemized Wage Statement (Labor Code §226);
+
Labor Code § 558.1 states that any person acting on behalf of an employer may be held liable when he or she violates (or causes to be violated) any of these wage-and-hour laws:
  
·      Meal and rest break requirement (Labor Code §226.7);
+
<ul>
 +
<li>minimum wages and any minimum wage provisions found in the wage orders;</li>
 +
<li>any provision regulating hours and days of work found in the wage orders;</li>
 +
<li>timely payment of wages;<ref>Labor Code § 203</ref></li>
 +
<li>provision of a pay stub/itemized wage statement;<ref>Labor Code § 226</ref></li>
 +
<li>meal and rest breaks;<ref>Labor Code § 226.7</ref></li>
 +
<li>overtime compensation;<ref>Labor Code § 1194</ref>and/or</li>
 +
<li>reimbursement of expenses incurred in the discharge of duties.<ref>Labor Code § 2802</ref></li>
 +
</ul>
  
·      Overtime requirements (Labor Code §1194);
+
If an employee is terminated or quits and the employer fails to pay the employee in timely fashion, the employer might face waiting-time penalties. The business might be required to continue the exiting employee’s wages on a day-to-day basis, to a maximum of 30 days, until the final paycheck is ready. This rule applies to both exempt and nonexempt employees.<ref>Labor Code § 203</ref>
  
·      Reimbursement of expenses incurred in the discharge of duties (Labor Code §2802).
+
If an employer terminates or lays off an employee with no specific return date within the normal pay period, all wages and accrued vacation or PTO earned but unpaid are due and payable immediately.<ref>Labor Code § 201</ref>
  
If an employee is terminated or quits and the employer fails to pay the employee in a timely fashion, the employer may face waiting time penalties.  The business may be required to continue the exiting employee’s wages on a day-to-day basis, up to a maximum of 30 days, until the final paycheck is ready.  This rule applies to both exempt and non-exempt employees. Labor Code §203.
+
If an employee voluntarily quits with at least 72 hours' notice, the employer must pay all wages and accrued vacation or PTO earned but unpaid on the last day of work.<ref>Labor Code § 202</ref>
  
If an employer terminates an employee or lays him/her off with no specific return date within the normal pay period, all wages and accrued vacation or PTO earned but unpaid are due and payable immediately. Labor Code §201.
+
If an employee quits with less than 72 hours' notice, the employer must pay all wages and accrued vacation or PTO earned but unpaid within 72 hours after notice is given. The 72-hour requirement is clock hours, not business hours.<ref>Labor Code § 202</ref>
  
If an employee voluntarily quits with 72 hours notice or more, the employer must pay all wages and accrued vacation or PTO earned but unpaid on the last day of work.  Labor Code §202.
+
If the employer fails to provide the employee with the final paycheck within this time period, it's subject to waiting-time penalties as described above for as long as 30 calendar days.
  
If an employee quits with less than 72 hours notice, the employer must pay all wages and accrued vacation or PTO earned but unpaid within 72 hours after notice is given. The 72-hour requirement is actual clock hours, not business hours.  Labor Code §202.
+
An employee has three years to file a lawsuit to enforce a statutory obligation, including violations of wage-and-hour rules.<ref>Civil Code § 338</ref> The California Supreme Court found that failure to pay earned wages, including overtime, is an unfair business practice and a violation of the California Unfair Competition Law (UCL). An employee may file a claim for unpaid wages for as long as four years after the alleged failure to pay. Employees may collect as much as four years of back wages under the UCL, versus three years under the Labor Code.<ref>''Cortez v. Purolator Air Filtration Products Co.'' (2000) 23 Cal. 4th 163</ref>
  
If the employer fails to provide the employee with the final paycheck in this time period, it is subject to waiting time penalties as described above for up to 30 calendar days.
+
==Private Attorneys General Act (PAGA)==
  
An employee has three years to file a lawsuit to enforce a statutory obligation, including violations of wage and hour rules.  Civil Code §338. The California Supreme Court found that failure to pay earned wages, including overtime, is an unfair business practice and violation of the California unfair competition law.  Under the law an employee can file a claim for unpaid wages up to four years after the alleged failure to pay. Employees can now collect up to four years of back wages under the unfair competition law rather than three years under the Labor Code. Cortez v. Purolator Air Filtration Products Company (2000) 23 Cal. 4th 163.
+
An aggrieved employee, acting on his or her own behalf and/or on behalf of other current and former employees, may bring a civil action to enforce provisions of the Labor Code if the government does not do so. In order to bring a PAGA action, the employee first must file an administrative notice with the Labor and Workforce Development Agency (LWDA), and notify the employer of his or her intent to file a lawsuit. PAGA allows some alleged violations to be "cured" if done within a specific period of time. So if your company is notified that a complaint has been filed with the LWDA, you should contact your employment attorney immediately to determine whether the alleged violation can be cured and penalties averted.<ref>Labor Code § 2698-2699; [https://www.dir.ca.gov/Private-Attorneys-General-Act/Private-Attorneys-General-Act.html]</ref>
  
==Private Attorneys General Act (PAGA)==
+
An aggrieved employee may recover the applicable wage-and-hour civil penalties on behalf of himself or herself and other current or former employees. Penalties are in addition to wage-and-hour damages.
 +
 
 +
PAGA actions are becoming increasingly common as stand-alone lawsuits or in conjunction with other actions, including seeking individual damages for failure to pay wages or overtime. PAGA actions also are commonly filed as an add-on to class-action lawsuits.
 +
 
 +
As with other wage-and-hour lawsuits, an employee who prevails is entitled to an award of reasonable attorneys’ fees and costs in addition to collecting civil penalties on behalf of the representative group.
 +
 
 +
When a specific wage-and-hour law does not provide for a penalty, the court may assess:
 +
 
 +
<ul>
 +
<li>a civil penalty of $500 if the business has no employees at the time of the alleged violation ;</li>
 +
<li>a civil penalty of $100 if the business employs one or more people at the time of the alleged violation, and $200 for each aggrieved employee per pay period for each subsequent violation.<ref>Labor Code § 2699</ref></li>
 +
</ul>
  
An individual aggrieved employee, acting on his or her own behalf and/or on behalf of other current and former employees, can bring a civil action to enforce provisions of the Labor Code if the government does not do so.  Labor Code §2698-2699.
+
PAGA actions are always expensive and easily can result in penalties of several hundred thousand dollars, even when applied to workplaces with a moderate number of affected employees.  
  
An aggrieved employee can recover the applicable civil penalty on behalf of himself or herself and other current or former employees against to one or more of the alleged violations was committed.  Penalties are in addition to any wage and hour damages.
+
An exhaustive review of PAGA actions is beyond the scope of this guidebook, but employers are encouraged to contact us should they have additional questions about the act, including how to avoid becoming involved in a PAGA action.
  
PAGA lawsuits are becoming increasingly common either as stand-alone lawsuits, in conjunction with other legal theories, or as an add on to class action lawsuits.
+
==See Also==
  
As with other wage and hour lawsuits, any employee who prevails in any action is entitled to an award of reasonable attorney’s fees and costs.
+
*[[State and Local Workplace Safety Orders]]
 +
*[[Injuries at Home or Due to the Home Office]]
 +
*[[Remote Depositions]]
 +
*[[Remote Medical Treatment Examinations & Medical-Legal Appointments]]
  
When a specific wage and hour law does not provide for a penalty, the court can assess one of the following penalties:
+
==Reference==
 +
<references/>
  
·      At the time of the alleged violation, if the person does not employ one or more employees, the civil penalty is $500.00.
+
----
  
·      At the time of the alleged violation, if the employer employees one or more employees, the civil penalty is $100.00 for each aggrieved employee per pay period for the initial violation and $200.00 for each aggrieved employee per pay period for each subsequent violation.  Labor Code §2699.
 
  
PAGA actions are always expensive and can easily result in penalties of several hundred thousand dollars even when applied to work places with a moderate number of affected employees.  An exhaustive review of PAGA actions is beyond the scope of this guidebook, but employers are encouraged to contact us should they have additional questions about PAGA, including ways to avoid becoming involved in a PAGA action.
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! [[Federal and California Worker Adjustment and Retraining Notification Acts|< Federal and California Worker Adjustment and Retraining Notification Acts]] !! [[Navigating COVID-19: A Legal Guide For California Employers|Table of Contents]] !! [[Return-to-Work Considerations| Return-to-Work Considerations >]]
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Latest revision as of 00:41, 23 January 2024

< Previous Table of Contents Next >


Mindful of the coronavirus threat, government and health authorities continue to encourage employers to allow employees to work from home if possible.

When stay-at-home orders were issued in mid-March, many employers scrambled to establish teleworking arrangements for their employees. Companies that didn’t have an established teleworking policy made do as best they could. Now that the dust has settled, it’s time to understand the legal implications of teleworking and to contemplate whether teleworking will remain a viable option as business opens up.

Establishing a Telework Policy

If your company has not done so, establish a policy for teleworking. If teleworking is new to you, and you intend to support it only during the stay-at-home period, the policy needn't be implemented as a formal part of the employee handbook. It may be a stand-alone document, or even a group email to staff currently working from home. Some employers might decide to make teleworking a new benefit after stay-at-home orders are lifted. In such cases, policies should be drafted for that benefit, and be integrated into the employee handbook.

The policy should clearly address the issues discussed in the following subsections.

Work Hours and Timekeeping

Working from home under the stay-at-home orders can be challenging for some employees who are managing child care, online schooling for their children and the lack of a dedicated workspace. Although the FFCRA provides some relief through expanded leave for eligible employees per the Family and Medical Leave Act, if the crisis lasts much longer, most workers will have exhausted that benefit, and must figure how to work effectively from home.

When possible, employers should be flexible in how they define the workday and work hours. For example, they could allow employees to manage their own time, which might include working outside normal business hours. That isn't feasible for all workers, so working part time, for example, might allow such employees to care for their families and fulfill other obligations while continuing to work in some capacity. Employers who are creative now can retain valued employees and return to normal operations once the crisis passes.

A flexible schedule might be most effective with exempt employees who aren’t subject to timekeeping requirements and overtime. But there are rules about how exempt employees must be paid. They are discussed in the subsection below, Compensating Exempt Employees Who Telework.

If an employer allows nonexempt employees to work a flexible schedule, it must be mindful of the wage-and-hour implications. California's Labor Code requires employers to pay hourly nonexempt employees only for the hours they actually work, including overtime. So employers must have an accurate means of tracking all the hours those employees work. And employees must record their start and stop times every day, when they break for meals, and for all work performed outside the normal workday (for example, off-hours work involving text messages, telephone calls, emails, etc.).

Teleworking policies must address when meal breaks be taken, and that the employee is required to clock in and out for each such break. Nonexempt employees should be instructed to take job-free meal breaks; that is, they should not eat while working in order to shorten the workday. There is no time clock at home, but there are computer programs to track logging in and out.

Several strategies can accurately report time and maximize teleworker productivity. Workers punching in and out for meal breaks enables employers to ensure that their meal breaks begin before the end of the fifth hour of work in any given workday. Failure to take a timely meal break could result in employer penalties like those to which it's subject if an employee misses a meal break –– one hour of pay for every late or missed meal break.

If a nonexempt employee’s shift ends after six hours, employers should give him or her the option to waive the meal period. The waiver should be in writing.

All nonexempt employees are entitled to rest breaks. Encourage teleworking employees to take a 10-minute rest break for every four hours worked, or close to it. Employees needn't clock out during that interlude, but they shouldn't be discouraged from taking a break. If an employee feels unable to take a break because of employer pressure, he or she could be entitled to a rest-break premium –– one hour of pay for missed rest breaks.

Overtime

For almost all nonexempt private sector California employees who are not covered by collective bargaining agreements, overtime pay is based primarily on the number of hours worked in each day and each workweek. Daily overtime pay requirements are:

  • 1.5 times the employee’s regular rate of pay for:
    1. all hours worked in excess of eight in a single day
    2. the first eight hours worked on the seventh consecutive day in a single workweek
  • double the employee’s regular rate of pay for:
    1. all hours worked in excess of 12 in a single workday
    2. all hours worked in excess of eight on the seventh consecutive day work in a single workweek

Employees also are entitled to weekly overtime –– employers must pay employees 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 straight-time hours (defined as the usual number of hours and the usual amount of pay for a period of work) in a workweek. Only hours worked at straight time apply to the weekly 40-hour limit. Employees are entitled to daily overtime or weekly overtime, whichever is greater.

An exhaustive review of overtime requirements is beyond the scope of this guidebook; employers should familiarize themselves with overtime rules and regulations in drafting teleworking policies for their nonexempt employees.

Other Wage-and-Hour Considerations for Nonexempt Teleworkers

If employers permit flexible scheduling for nonexempt workers, they must consider the effect of split shifts. A split shift is any two distinct work periods separated by more than a one-hour meal period. If the interval between shifts is more than one hour, the employee must receive one hour’s pay at no less than the minimum wage rate for the time between shifts.[1]

The minimum wage rate is based on either the state’s minimum wage or the local minimum wage, whichever is greater. Case law has held that split-shift premiums aren’t due if total pay for the day is at least minimum wage for all hours worked, plus an additional hour at minimum wage.[2] Note: no split shift pay is owed if the employee requests to work that schedule for his or her own convenience.[3] So, if your business allows employees to create or request a flexible schedule, be sure that they do so in writing to avoid having to pay a potential split-shift premium.

Calculating split-shift premiums is complicated; employers should contact us with questions on this topic.

Employers might consider reporting time pay also for nonexempt employees working flexible schedules. That practice discourages employers from requiring nonexempt employees to report to a job unless there is work to be done. Typically, reporting time pay is owed when an employee reports for work but there is no work, or he or she is given less than half of the hours for which the worker was scheduled or usually works. Reporting time pay for these situations is at least half of the hours scheduled or usually worked, but never fewer than two hours' pay or more than four.[4]

It's unclear whether reporting time would be due for nonexempt teleworking employees, as they are not required, technically, to return to the workplace after a shift ends nor, technically, to “report” to work only to find insufficient work available. But given the uncertainty, employers at least should consider the potential ramifications of reporting time pay requirements. The California Division of Labor Standard Enforcement (DLSE) advises employers that reporting time pay be required when nonexempt employees are directed to attend meetings on a day they're not scheduled to work, or if meeting attendance is required after the employee’s regular shift has ended and the worker must return to work. If employers call meetings and expect nonexempt employees to attend, they should try to schedule them during the employees’ workday.

The availability of flexible scheduling for nonexempt employees might affect whether reporting time pay is owed.[5] Pay is not required when work is interrupted by an act of God or other causes not within the employer’s control, among other minor exceptions.[6] Although initially the pandemic crisis and stay-at-home orders might have qualified as “an act of God or causes outside the employer’s control,” the ongoing crisis probably would not be considered an exception because businesses have had the opportunity to regroup and fashion policies and practices for their teleworking employees.

On-call and standby pay also might be considered for teleworking nonexempt employees. If a business requires nonexempt employees to work on call or standby, the waiting time might qualify as hours worked, depending on how much you restrict their ability to have free time. Hours worked is defined as “the time during which an employee is subject to the control of the employer, and includes all the time the employee is suffered or permitted to work, whether required to do so or not.”[7] If an employee is under the employer’s control, he or she must be paid even if the worker is sitting around waiting for something to happen. This is called “controlled standby.”

On-call time, however, is not compensable if the employee can use the waiting time for his or her benefit. This is referred to “uncontrolled standby.”[8] There are separate rules for the health-care industry.

The factors for determining whether an employee is on controlled standby and, therefore, must be paid include:

  • whether there are excessive geographical restrictions on the employee's movements;
  • whether the frequency of calls is unduly restrictive;
  • whether a required response time is unduly restrictive;
  • whether the on-call employee easily can trade the responsibility with another employee; and
  • the extent of personal activities engaged in during on-call time.[9]

The simple requirement that the employee carry a cellphone, pager or beeper does not mean that he or she must be paid for all hours the device is on. In addition, the DLSE does not take the position that requiring an employee to respond to calls is so inherently intrusive as to find that he or she is under the employer's control. If the teleworker is free to do whatever he or she chooses at home while awaiting a call to begin work, wages probably aren't due for that time.

Employers with an on-call or standby workforce, must implement teleworking policies that expressly address workers' ability to use the on-call time for their own purposes. The policy should address: expected productivity standards; connectivity and logistical issues (such as how to submit work and engage in conference calls and online meetings); and parameters for bringing work documents home, mindful of their adherence to confidentiality and data security protocols.

The policy should be subject to re-evaluation and modification at will, in the employer's sole discretion. Once the pandemic subsides, the policy might be terminated if employee presence at the workplace is essential.

As noted, not all jobs are conducive to teleworking. Employers may offer teleworking to some workers, but not all: Bank tellers, for example, can perform no useful work functions from home, but bank administrative workers might be able to work in that setting. In selecting who may work from home, employers must take care not to discriminate on the basis of race, gender, age or other legally protected characteristic. For example, employers should not mandate that all employees older than 60 must work from home, although they may give certain employees that choice as long as the option is not offered on a discriminatory basis.

Compensating Exempt Employees Who Telework

For California employees to be considered exempt, generally they must meet strict job duty tests specific to each exemption, as well as meet minimum salary requirements.

The minimum monthly salary for exempt executive, administrative and professional employees is no less than two times the state minimum wage for all full-time employment. Exempt employees must earn a fixed salary not subject to change based on productivity or hours worked. Minimum wage is based on the current state –– not local –– minimum wage. In 2020, the minimum salary threshold for these exemptions is:

  • For employers with 25 or fewer employees, the state minimum wage is $12 per hour; the minimum monthly salary is $4,160.
  • For employers with 26 or more employees, the state minimum wage is $13 per hour; the minimum monthly salary is $4,506.67.

Employees who fall within the computer professional exemption or the outside sales exemption are subject to different salary requirements.

The job duty test for exempt employee classification depends on the specific exemption. The executive, professional and administrative exemptions all require employees to perform exempt duties more than 50% of the time. One common requirement for exempt status is that employees must customarily and regularly exercise discretion and independent judgment.[10] Such judgment has been subject to extensive litigation, so employers that question if their exempt employees are performing exempt duties under the test requirements should seek a legal evaluation.

Employees considered exempt must receive a salary, and it must be a predetermined amount paid each pay period. The amount may not be reduced because the worker's hours or performance varied from period to period.

During the pandemic, businesses must understand these rules, as exempt employees who are teleworking might be performing more nonexempt duties than normal, and employers should ensure that they don't fall below the mandatory 50% of time spent on exempt duties. Many businesses have reduced employee salaries as a result of financial losses from the pandemic. That might be permitted if certain standards are met, but employers must take care that those salaries don't fall below the threshold discussed above. If that happens, the employee automatically will be deemed a nonexempt employee regardless of his or her job performance. Nonexempt status confers eligibility for overtime, and requires meal and rest breaks. So it's vital that employers know how their employees are spending their time while teleworking, and the minimum salary for that classification.

Expense Reimbursement While Working at Home

Employers must reimburse employees for all monies they expend or lose directly related to performing their duties or following the employer’s instructions, per Labor Code § 2802.

In addition to standard reimbursements such as mileage, travel and meal expenses, other expenses pertaining particularly to teleworkers must be reimbursed. An employer must reimburse an employee if he or she is required to use a personal cellphone to make work-related calls. Employees now required to telework probably use their personal cellphones in the service of their employers. One court held that an employer must pay “some reasonable percentage” of the employee’s cellphone bill to comply with the Labor Code.[11]

Unfortunately, there is no guidance as to what constitutes a “reasonable percentage,” but if a teleworking employee uses his or her cellphone in the course of the workday, a reasonable percentage is at least half of the cellphone bill. Many employers have established flat reimbursement amounts for employee use of their personal cellphones. Reimbursing all teleworking employees $100 per month for cellphone use, for example, might be reasonable and administratively expedient. Employers also should reimburse a portion of a teleworking employee’s internet expense. Here, too, many employers have found it administratively wise to reimburse each such worker a fixed amount each month for the business use of his or her personal account.

If employers ask their teleworkers to use their personal computer and printer, reimbursement might be in order for supplies and equipment wear and tear. Similar to a car allowance, a set allowance might be set for employee use of their computer equipment. Teleworkers should keep receipts of reasonable office expenses and instructed how to submit them for reimbursement.

Under the Private Attorney General Act (PAGA), failure to properly reimburse employees for reasonable expenses can open up employers to penalties and legal action.

Potential Disability Issues

Employers must consider disability accommodation issues when employees are teleworking. If an employee has a disability-related accommodation at work (for example, taking additional breaks or using an ergonomic keyboard or chair), employers should determine how to provide the same accommodations for that teleworking employee, subject to undue business hardship considerations.

Although the EEOC has loosened its regulations for accommodating the disabilities of pandemic teleworkers, employers still must follow their policy and procedures for: securing doctors’ notes; engaging in the interactive process; considering alternatives; and making an effort to provide accommodations while the employee is teleworking. Disability and accommodation considerations are discussed in-depth in the previous sections, Disability and Reasonable Accommodations Under the Americans with Disabilities Act & the Fair Employment and Housing Act.

Monitoring Productivity and Communication

How do businesses monitor productivity when employees are teleworking? They can and should track work progress, but they also must remind employees not to expect privacy when they work from home –– companies may monitor their actions during the workday.

Most employee handbooks make clear that communications performed on company equipment, including email, work product and internet site visits, may be monitored. If your company has not communicated such a policy, do so before implementing teleworking operations. These policies diffuse claims that employees had a reasonable expectation of privacy in using the employer’s system, and that it violated privacy rights by monitoring employees' use of it.

It's also important to determine how to measure the productivity of teleworking employees. Will the employer require daily employee check-ins to report the progress of their assignments to supervisors? Will conference calls be initiated to ensure employees understand instructions, and report progress?

How best to monitor productivity depends on the nature of the business and the employee’s job duties. So productivity measures will look different for each industry and each employer.

Because schools are closed and children are at home (often taking classes online), employees might be juggling child care with their job responsibilities during the pandemic. Employers should remain flexible about the nature of the workday and the hours worked, and how productive a worker can be in a given work period. Employees might not have dedicated work areas in their homes; they might be interrupted and distracted as they work. Flexible teleworking policies during the pandemic can benefit employers by enabling employees to handle family responsibilities during otherwise normal workdays, as long as they're mindful of wage-and-hour issues.

Employers should provide resources employees need to work from home effectively, such as computers and telephones. If that's not possible, they should evaluate employees' personal equipment they must use on the employer’s behalf, and determine if and how to reimburse these business expenses (see the subsection above, Expense Reimbursement While Working at Home).

Occupational Safety and Health

OSHA and Cal/OSHA obligate employers to provide a workplace free from recognized hazards, even when working from home. Employers should ask employees to review their work area to ensure that it is free from tripping, electrical or other hazards. Sometimes, injuries that occur at home while an employee is working may be covered under workers’ compensation. This topic is discussed extensively in "Sullivan on Comp" Chapter 5: Injury, and in this guide's Injuries at Home or Due to the Home Office.

Employee Personnel Records

Employers should ensure that employee information is current for home address and contact information. Some employers might want to set up an internal website and team and/or companywide distribution lists for information-sharing.

Protecting Confidential and Proprietary Information

It's essential that businesses remind teleworking employees of their obligation to protect confidential and proprietary company information. Such protection might require employees to work on the company’s servers, not on their own personal computer, and not saving copies of documents to their personal computer, or printing them at home. Depending on the type of business and who is working remotely, a simple reminder to protect company confidentiality might be sufficient. For companies and workers managing trade secrets, for example, higher-level protections might be required.

Wage-and-Hour Enforcement and Penalties

The coronavirus has made teleworking common and, in some counties in California, teleworking is required for employees who can perform their jobs from home. Employers must use reasonable diligence in tracking the hours of nonexempt teleworkers just as if they were working from the office or workplace. The U.S. Department of Labor recognized the need for guidance, and issued Field Assistance Bulletin No. 2020-5 to assist employers in tracking and properly paying nonexempt teleworkers. The guidance has no new law or requirement, but reminds employers that teleworking employees must be paid for all hours they are scheduled to work and/or directed to work, but also must pay for all time an employee is permitted to perform unscheduled work. Most employers understand they must pay for all time worked even if it wasn't authorized. Most commonly, this occurs when overtime is worked without prior authorization.

Simply put, the employer must pay for all work it knows, or should know, is being performed.[12] In a telework situation, it is much more difficult for employers to truly know when work is being performed. Actual knowledge may be derived from employees reporting they worked extra hours or a supervisor requesting work be done outside a regular work schedule. The guidance explains that employers must use reasonable diligence to determine all hours employees work. The reasonable diligence standard is based on what the employer "should" know, not on what the employer "could" know.

Employers needn't review IT records, phone records, or other documents to determine whether a nonexempt employee performed work on a particular day. Instead, the guidance suggests that employers have policies and forms instructing nonexempt teleworking employees what is expected from them in terms of hours worked, recording time, and working overtime without authorization. Employers should instruct workers to record all hours worked and should not discourage accurate and complete reporting or tell employees that any work performed outside of regularly scheduled hours will be not be paid. As is always the case, employers are advised to pay employees for the work performed, and to discipline employees who work unauthorized hours.

Businesses must compensate employees properly, or risk being assessed penalties for violating wage-and-hour laws, and damages. The California Division of Labor Standards Enforcement (DLSE, or Labor commissioner) is charged with enforcing these laws and adjudicating wage claims. An employee may file a wage claim in civil court; if successful, his or her attorney may collect fees from the employer. Failure to pay the minimum wage subjects the employer to fines and imprisonment, and restitution of the wages to the employee. The Labor commissioner also may assess liquidated damages equal to the amount of the wages improperly withheld, plus interest. In addition, the commissioner may assess a civil penalty of $100 for each underpaid employee for each pay period during which the employer failed to pay minimum wage. For each subsequent intentional failure to pay the minimum wage, the penalty is $250.[13]

Unlawfully withholding wages or failing to pay the minimum wages is a misdemeanor. Any employee receiving less than the applicable minimum wage or the legal overtime compensation is entitled to file a lawsuit in court. The employee might win damages, penalties, liquidated damages and attorneys' fees, making wage-and-hour actions potentially quite expensive. And these types of actions are rarely covered by insurance.

Beginning Jan. 1, 2020, employees have the right to seek enforcement of these additional penalties. Under the new law, they may bring a private action either to recover the statutory penalties in a hearing before the Labor commissioner, or bring a civil action under the Private Attorneys General Act (see the following subsection).

Individuals may be held personally liable for a company’s failure to comply with certain wage-and-hour laws. The Labor commissioner’s authority to assess civil penalties for Labor Code and wage order violations extends not only to the employer, but to any “other person acting on behalf of the employer.”[14] Individuals who may be personally liable for wage payments and penalties include company owners, directors, officers and managing agents.[15] So, a court could allow a winning employee to collect the judgment from individuals if the business is unable to pay.

Labor Code § 558.1 states that any person acting on behalf of an employer may be held liable when he or she violates (or causes to be violated) any of these wage-and-hour laws:

  • minimum wages and any minimum wage provisions found in the wage orders;
  • any provision regulating hours and days of work found in the wage orders;
  • timely payment of wages;[16]
  • provision of a pay stub/itemized wage statement;[17]
  • meal and rest breaks;[18]
  • overtime compensation;[19]and/or
  • reimbursement of expenses incurred in the discharge of duties.[20]

If an employee is terminated or quits and the employer fails to pay the employee in timely fashion, the employer might face waiting-time penalties. The business might be required to continue the exiting employee’s wages on a day-to-day basis, to a maximum of 30 days, until the final paycheck is ready. This rule applies to both exempt and nonexempt employees.[21]

If an employer terminates or lays off an employee with no specific return date within the normal pay period, all wages and accrued vacation or PTO earned but unpaid are due and payable immediately.[22]

If an employee voluntarily quits with at least 72 hours' notice, the employer must pay all wages and accrued vacation or PTO earned but unpaid on the last day of work.[23]

If an employee quits with less than 72 hours' notice, the employer must pay all wages and accrued vacation or PTO earned but unpaid within 72 hours after notice is given. The 72-hour requirement is clock hours, not business hours.[24]

If the employer fails to provide the employee with the final paycheck within this time period, it's subject to waiting-time penalties as described above for as long as 30 calendar days.

An employee has three years to file a lawsuit to enforce a statutory obligation, including violations of wage-and-hour rules.[25] The California Supreme Court found that failure to pay earned wages, including overtime, is an unfair business practice and a violation of the California Unfair Competition Law (UCL). An employee may file a claim for unpaid wages for as long as four years after the alleged failure to pay. Employees may collect as much as four years of back wages under the UCL, versus three years under the Labor Code.[26]

Private Attorneys General Act (PAGA)

An aggrieved employee, acting on his or her own behalf and/or on behalf of other current and former employees, may bring a civil action to enforce provisions of the Labor Code if the government does not do so. In order to bring a PAGA action, the employee first must file an administrative notice with the Labor and Workforce Development Agency (LWDA), and notify the employer of his or her intent to file a lawsuit. PAGA allows some alleged violations to be "cured" if done within a specific period of time. So if your company is notified that a complaint has been filed with the LWDA, you should contact your employment attorney immediately to determine whether the alleged violation can be cured and penalties averted.[27]

An aggrieved employee may recover the applicable wage-and-hour civil penalties on behalf of himself or herself and other current or former employees. Penalties are in addition to wage-and-hour damages.

PAGA actions are becoming increasingly common as stand-alone lawsuits or in conjunction with other actions, including seeking individual damages for failure to pay wages or overtime. PAGA actions also are commonly filed as an add-on to class-action lawsuits.

As with other wage-and-hour lawsuits, an employee who prevails is entitled to an award of reasonable attorneys’ fees and costs in addition to collecting civil penalties on behalf of the representative group.

When a specific wage-and-hour law does not provide for a penalty, the court may assess:

  • a civil penalty of $500 if the business has no employees at the time of the alleged violation ;
  • a civil penalty of $100 if the business employs one or more people at the time of the alleged violation, and $200 for each aggrieved employee per pay period for each subsequent violation.[28]

PAGA actions are always expensive and easily can result in penalties of several hundred thousand dollars, even when applied to workplaces with a moderate number of affected employees.

An exhaustive review of PAGA actions is beyond the scope of this guidebook, but employers are encouraged to contact us should they have additional questions about the act, including how to avoid becoming involved in a PAGA action.

See Also

Reference

  1. Industrial Welfare Commission Wage Order No. 5-2001 Section 4 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  2. Aleman v. Airtouch Cellular (2012) 209 Cal. App 4th 556
  3. Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  4. Industrial Welfare Commission Wage Order No. 5-2001 Section 5 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  5. DLSE Enforcement Policies and Interpretations Manual Section 45.1.2
  6. Industrial Welfare Commission Wage Order No. 5-2001 Section 5 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  7. Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  8. Industrial Welfare Commission Wage Order No. 5-2001 Section 2 https://www.dir.ca.gov/IWC/IWCArticle5.pdf
  9. Madera Police Officers Assn. v. City of Madera (1984) 36 Cal. 3d 403
  10. DLSE Enforcement Policies and Interpretations Manual Section 51.5
  11. Cochran v. Schwan’s Home Service, Inc., (2014) 228 Cal. App. 4th 1137
  12. 29 C.F.R.§ 785.11-12
  13. Labor Code § 1197.1
  14. Labor Code § 558
  15. Labor Code § 558.1(b)
  16. Labor Code § 203
  17. Labor Code § 226
  18. Labor Code § 226.7
  19. Labor Code § 1194
  20. Labor Code § 2802
  21. Labor Code § 203
  22. Labor Code § 201
  23. Labor Code § 202
  24. Labor Code § 202
  25. Civil Code § 338
  26. Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal. 4th 163
  27. Labor Code § 2698-2699; [1]
  28. Labor Code § 2699


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