The Fair Labor Standards Act (FLSA) is a federal law governing certain employment matters. These include pay, documentation and reporting, and youth workers in the private sector and in federal, state, and local government. It is administered through the Wage and Hour Division of the U.S. Department of Labor (WHD).
The following are some frequently asked questions about the FLSA in the context of the COVID-19 pandemic.
1) What does my employer have to do for me if I am subject to a government-mandated quarantine?
WHD promotes flexibility and accommodation in these circumstances. If possible, your employer should allow for alternative work arrangements such as working from home, or additional paid time off.
2) Can my employer mandate remote work or telework in an effort to limit the spread of COVID-19 in the workplace?
Yes. This is allowed as an infection-control or prevention strategy. It is also allowed based on guidance from public health authorities about pandemics, public health emergencies, or other similar conditions. However, once implemented this policy must apply to everyone.
3) Am I entitled to my regular pay rate or salary even though I am working from home?
Under the FLSA, employers are generally obligated to pay employees only for the hours actually worked, regardless of whether the work is performed at home or at the office. However, as a non-exempt employee, you must be paid no less than the minimum wage for all hours worked. You are also entitled to no less than one and a half times your regular pay for any hours worked in excess of 40 in a workweek.
If you are a salaried exempt employee, you are entitled to your full salary in any week worked, with certain, limited exceptions.
There are two exemptions from both of these rules. The first is if telework is being provided as a reasonable alteration for someone with a disability. The second is if telework is mandated by a union or employment contract. In either of these circumstances, the employee must get the same hourly pay or salary as they would if they were working at the office.
4) What if my employer prevents me from coming to work and mandates that I work from home, but I cannot do so? Will I still get paid?
Not necessarily. As noted above, the FLSA only mandates that employees be paid for the hours they actually work, irrespective of whether the work is carried out at the office or at home. Therefore, you may not be paid if you are ordered to work from home because of the pandemic and cannot do so.
Accordingly, the WHD suggests that employers adopt other strategies, such as staggered work shifts, when not all employees can work from home.
5) Do I have to reimburse my employer or pay for additional costs incurred by them while I am working from home, such as the provision of equipment or services to facilitate work?
It depends. Under the FLSA, an employer cannot request payment of or reimbursement for any such expenses if doing so: a) results in the employee’s pay dropping below minimum wage; or b) results in the employee’s pay falling below the required overtime compensation.
6) How do OSHA standards and the FLSA apply to home offices and working from home?
The Department of Labor’s Occupational Safety and Health Administration (OSHA) does not regulate telework in home offices. In fact, a 2020 OSHA directive stipulated that the agency would not inspect home offices. It also stipulated that it would not hold employers liable for their workers’ home offices. Finally, it indicated that employers are not expected to inspect the home offices of their employees. However, employers that ordinarily charged with maintaining records of work-related injuries and illnesses must still do so for injuries and illnesses occurring in a home office.
The FLSA does not preclude employers from implementing telework or other flexible work arrangements that facilitate working from home. However, employers must still keep accurate records of hours worked for all employees. This includes any employees working from home or engaging in similar arrangements.
7) Can my employer make me do work that is not usually part of my job description because of staffing shortages or other circumstances associated with the COVID-19 pandemic?
There are no restrictions on the types of work an adult employee may be required to do under the FLSA. However, there are limitations to the types of work performed by employees under the age of 18. This is so regardless of whether the work requested is listed in his or her job description.
8) Are there any restrictions on the hours per day or per week can an employee work?
No. Under the FLSA, there are no restrictions on the number of hours per day or per week that an employee age 16 or older can be required to work.
9) How much does my employer have to pay me if I’m paid by the hour and I’ve only worked part of a week because his or her business closed?
For the most part, the FLSA applies to time actually worked. This means employers who can no longer employ their non-exempt workers do not have to pay them for hours the employees would have ordinarily worked.
10) Can my employer ask me to do any extra work on a voluntary basis to help make up for a staffing shortfall because of COVID-19?
No, probably not. This is because the FLSA has very strict rules pertaining to the use of volunteers. In most cases, if you are a covered, non-exempt employee working for private, for-profit employer, you must be paid at least the minimum wage. This means you cannot volunteer to do any extra work due to the pandemic or otherwise.
11) I am a salaried, exempt employee. Can my employer make me take vacation (or leave bank deductions) or leave without pay during office closures because of COVID-19? If so, how would it affect my status?
Yes, if you work for a private employer. However, this is only applicable if you are paid an amount equal to your guaranteed salary. This would not affect your status as an exempt employee unless: a) you do not have any accrued benefits in the leave bank account; or b) you have limited accrued leave and the reduction would result in a negative balance in the leave bank account. In this case you must still get the your guaranteed salary for any absence(s) caused by an office closure in order to retain your status.
12) Am I entitled to compensation if I volunteer for a public agency during the COVID-19 pandemic?
No, you are not considered an employee, and are not required to be paid as such under the FLSA if you volunteer for a public agency (such as a state, parish, city or county government) in an emergency capacity and you:
- Do so for altruistic purposes with no promise, expectation, or receipt of compensation – although you may accept paid expenses, reasonable benefits or a small fee; and,
- Provide your services willingly and without any inappropriate pressure to do so; and,
- Are not ordinarily employed the same work for the same public agency.
13) Am I entitled to compensation if I volunteer with a private, not-for-profit organization during the COVID-19 pandemic?
You are not considered an employee and eligible for pay as such under the FLSA if you volunteer with any such organization in an emergency relief capacity if: a) you do so for altruistic purposes; and, b) you do so without expecting to or actually being compensated. Remember, however,that you are precluded from volunteering for any such organization where you are already employed to do the same sort of work.
In any emergency in which your employer is asked to provide their services, including their employees under Federal, state or local general police powers, you are regarded as a government employee for the duration. However, none of the time spent on the disaster relief services count as hours worked for your employer under the FLSA.
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