The COVID-19 pandemic changed much – some would say, nearly everything – about life as we know it. Almost overnight in America, businesses and schools shut down. Many people lost their jobs, and essential workers (nurses, cooks, delivery drivers, assembly-line workers, grocery store clerks, plumbers, etc.) kept going into work to keep the nation running, but at least for that initial few weeks, anyone else who could perform their job remotely was sent home. Employees quickly realized the benefits of not commuting or working in-person, and remote work (or work from home, or WFH) is now seeming like it will become a permanent fixture in our society.
Gallup’s September 2021 report revealed that 45% of full-time U.S. employees were working from home either all of the time (25%) or part of the time (20%). Those numbers may have dwindled slightly as cases decrease and people feel more comfortable returning to the office, but the percentage of employees who now want to work from home for the foreseeable future isn’t decreasing. A May survey by Bloomberg News showed that an estimated 39% of adults would consider quitting if their employers weren’t flexible about remote work; 49% of those belong to the Millennial and Gen Z generations.
The work-from-home dynamic is here to stay.
Working remotely isn’t a new phenomenon, but it is uncharted territory for many employers and employees, especially when it comes to paying/being paid wages and understanding how wage & hour laws apply. There’s no doubt that the application and enforcement of wage & hour rules gets more complex when employees aren’t actually in the office, but it’s important for both employees and employers alike to remember that labor laws exist to protect employees. These laws still have to be upheld even if the circumstances have changed! However, the circumstances are changing how these laws are working in many different ways. We wanted to take this blog post to discuss a couple of the major ones in order to bring clarity to a confusing topic!
Here are 2 ways that the work-from-home dynamic affects wage & hour rules/claims and employees especially need to know:
- The “Where” Matters When It Comes To Pay
As of late 2020, an estimated 30% of remote workers moved, and are now doing their jobs in a different state than where they had lived and worked pre-pandemic, CNBC reports. Because different states have different laws regarding how employees are paid, where employees are located matters.
Under the Fair Labor Standards Act (FLSA), employers in every state are required to pay “nonexempt” employees (this term typically refers to those who are paid hourly) a fair minimum wage for every hour they work. The federal minimum wage is currently $7.25, but the law states that employers have to pay employees the highest minimum wage based on their location.
For example, the minimum wage by California state laws is $14 or $15 (depending on how many employees the business has), and the minimum wage in Los Angeles County is $15 per hour. If the business is located in Calabasas (a city in Los Angeles County), nonexempt employees have to make $15 an hour – if they work at business headquarters.
Remote employees are to be paid the minimum wage based on where they physically are doing the work. For example, if the business is headquartered in Georgia, where the state minimum wage is $5.15 an hour (thought the federal legal wage is higher), but employees are working in Calabasas (because either they moved during the pandemic, or were hired them in that location), then they are legally required to make $15 an hour.
It’s the same for overtime pay – employees are to be paid overtime based on the overtime laws of the state that they’re working in. For example, California employees who work more than eight hours in a single day, more than 40 hours in a single workweek, or more than 6 days in a single workweek are supposed to be paid time-and-a-half, and double their regular rate of pay when they work more than 12 hours in a single workday or more than than 8 hours on the seventh consecutive day of a workweek. Other states have different overtime laws; remote workers who are located in California need to be compensated according to those standards, no matter where their employer is located.
- The “When” Matters When It Comes To Pay
Obviously, remote work looks different from in-office work. There’s a sense of greater flexibility – if allowed a flexible work schedule, most WFH employees are taking advantage of it by doing laundry, picking kids up from school, showering (a popular midday activity now), and taking care of other personal tasks.
Because of this, the U.S. Department of Labor (DOL) changed the requirement about the continuous workday. Before COVID, employees were supposed to be compensated for the block of time in between the start and end of the workday; now, employers (in every state) must compensate employees for all hours worked during a workday regardless of when those hours were. For example, if an employee works from 8:30am until 1:30pm, takes a lunch break and goes to pick up their kids from preschool between 1:30pm and 3:30pm, works again from 3:30pm until 6:30pm, and then logs off for the day, their employer would need to pay them for the total 8 hours worked, but not for the whole block of hours worked between 8:30am to 6:30pm.
The DOL also issued a Field Assistance Bulletin No. 2020-5 to help clarify that employees do need to be paying remote nonexempt employees for all hours worked that they reasonably know about. Employers cannot ask or encourage employees to send emails, participate in text exchanges “off the clock” unless they’re paying them for it!
If you have questions about the new work-from-home dynamic between you and your employer, or if you suspect that your employer is taking advantage of the new status and withholding the legal wages you deserve, call our knowledgeable wage & hour law attorneys who can explain your rights and work to ensure that you are paid fairly for your labor! Southern California Attorneys, A.P.C. serves wronged employees in the Calabasas, Ventura, and Thousand Oaks communities and throughout California. We offer free consultations and charge on a contingency fee basis, and we have over 60 years of experience on our multilingual, multi-attorney team. Our firm has been recognized by The Professional Attorney for 3 years in a row (2018, 2019, and 2020) and named in the top 10% of law firms in the nation by Lawyers of Distinction. We also have a 5 star review rating on Google. You can trust us to advocate for your employee rights!
