uestion: If your business has a shortage of workers and is looking to “volunteers” to help out, is that OK?

Answer: Be aware that the Fair Labor Standards Act has stringent requirements with respect to the use of volunteers. In general, covered, nonexempt workers working for private, for-profit employers have to be paid at least the minimum wage and cannot volunteer their services.

Question: How many hours is an employer obligated to pay an hourly-paid employee who works a partial week because the employer’s business closed?

Answer: The FLSA generally applies to hours actually worked. It does not require employers who are unable to provide work to nonexempt employees to pay them for hours the employees would have otherwise worked.

Question: If an employer directs salaried, exempt employees to take vacation (or leave bank deductions) or leave without pay during office closures due to influenza, pandemic or other public health emergency, does this impact the employee’s exempt status?

Answer: Exempt, salaried employees generally must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. The FLSA does not require employer-provided vacation time.

Where an employer offers a bona fide benefits plan or vacation time to its employees, there is no prohibition on an employer requiring that such accrued leave or vacation time be taken on specific days. Further, this will not affect the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary.

However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences occasioned by the office closure during a week in which the employee performs any work. Exempt, salaried employees are not required to be paid their salary in weeks in which they perform no work.

Question: What are an employer’s obligations to an employee who is under government-imposed quarantine?

Answer: WHD encourages employers to be accommodating and flexible with workers impacted by government-imposed quarantines. Employers may offer alternative work arrangements, such as teleworking, and additional paid time off to such employees.

Question: Can an employee be required to perform work outside of the employee’s job description?

Answer: Yes. The FLSA does not limit the types of work employees ages 18 and older may be required to perform.

Question: If individuals volunteer to a public agency, are they entitled to compensation?

Answer: Individuals who volunteer their services to a public agency (such as a state, parish, city or county government) in an emergency capacity are not considered employees due compensation under the FLSA if they are not otherwise employed by the same public agency to perform the same services as those for which they propose to volunteer.

Where employers are requested to furnish their services, including their employees, in emergency circumstances under federal, state or local general police powers, the employer’s employees will be considered employees of the government while rendering such services. No hours spent on disaster relief services are counted as hours worked for the employer under the FLSA.

Question: May an employer encourage or require employees to telework (i.e., work from an alternative location such as home) as an infection- control strategy?

Answer: Yes. An employer may encourage or require employees to telework as an infection-control or prevention strategy, including based on timely information from public health authorities about pandemics, public health emergencies or other similar conditions. Telework also may be a reasonable accommodation.

Question: Do employers have to pay employees their same hourly rate or salary if they work at home?

Answer: The FLSA and its implementing regulations do not prevent employers from implementing telework or other flexible work arrangements allowing employees to work from home.

Employers would still be required to maintain an accurate record of hours worked for all employees, including those participating in telework or other flexible work arrangements, and to pay no less than the minimum wage for all hours worked and to pay at least 1½ times the employee’s regular rate of pay for all hours worked over 40 in a workweek to nonexempt employees.

Employers are encouraged to work with their employees to establish hours of work for employees who telework and a mechanism for recording each teleworking employee’s hours of work.

Nonexempt employees must receive the required minimum wage and overtime pay free and clear. This means that when a covered employee is required to provide the tools and equipment (e.g., computer, internet connection, facsimile machine, etc.) needed for telework, the cost of providing the tools and equipment can not reduce the employee’s pay below that required by the FLSA.

Question: In the event an organization bars employees from working from their current place of business and requires them to work at home, will employers have to pay those employees who are unable to work from home?

Answer: Under the FLSA, employers generally only have to pay employees for the hours they actually work, whether at home or at the employer’s office; however, employers must pay at least the minimum wage for all hours worked, and at least time and a half the regular rate of pay for hours worked in excess of 40 in a workweek.

Salaried, exempt employees must receive their full salary in any week in which they perform any work, subject to certain very limited exceptions. When not all employees can work from home, employers may consider additional options to promote social distancing, such as staggered work shifts.

Common Sense CounselBest to decide your options and approach now with employees, including a telecommuting agreement and social distancing. For more detailed guidance from the Wage Hour Division of the Dept of Labor: https://www.dol.gov/agencies/whd/flsa/pandemic

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelikaand can be contacted at teden@constangy.com or

334-246-2901.

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