Teleworking in Response to the Pandemic

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 While Teleworking.

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. 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.

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. Note: no split shift pay is owed if the employee requests to work that schedule for his or her own convenience. 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.

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. 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. 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.” 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.” 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.

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 While Teleworking

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.

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:

• 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.

• 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.

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.

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.

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.

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 instructions. Labor Code section 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.

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.

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.

Failure to properly reimburse employees for expenses can open the employer up to penalties and legal action under the Private Attorney General Act (PAGA).

Potential Disability Considerations

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.

Monitoring Productivity and Communications

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.

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.

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.

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.

Occupational Safety and Health

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.

Employee Personnel Records

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.

Protect Confidential and Proprietary Information

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.

Wage and Hour Enforcement and Penalties

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.

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

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.

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 expensive. To make matters worse these types of actions are rarely covered by insurance.

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.

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.

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:

· 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 (Labor Code §203);

· The required to provide a paystub/itemized Wage Statement (Labor Code §226);

· Meal and rest break requirement (Labor Code §226.7);

· Overtime requirements (Labor Code §1194);

· Reimbursement of expenses incurred in the discharge of duties (Labor Code §2802).

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 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 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 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.

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.

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.

Private Attorneys General Act (PAGA)

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.

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.

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.

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.

When a specific wage and hour law does not provide for a penalty, the court can assess one of the following penalties:

· 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.