Telecommuting concerns for California employers

Now that the vast majority of workers in California are working remotely from home during the Coronavirus, California employers must make sure to minimize wage and hour liability arising from remote workers telecommuting while the Coronavirus stay-at-home order is in effect.

Here are the issues to consider:

If an exempt employee works at all in a workweek, they must be paid their full salary.  California law does not allow deductions from salary from absences of less than a full day for personal reasons or for sickness.

This means if an exempt employee works any portion of a day, there can be no deduction from salary for a partial day absence for personal or medical reasons. Employers may require exempt employees to take vacation or paid time off in the case of an office closure, whether for a full or partial day absence, but they cannot work at all.

Employers must cross-reference their handbooks or policies to confirm the company hasn’t offered more generous benefits. 

Salaried exempt employees must be paid their full salary while working from home, unless the employee performs no work for the entire workweek. Note that telecommuting may cause exempt employees to perform certain duties that are not considered exempt from overtime.

Although the FLSA and California Wage Orders provide some leeway for exempt employees to perform more non-exempt work in emergency situations, employers should carefully monitor and limit such non-exempt work where possible or risk losing the exemption.

Non-exempt employees earn money by the hours that they actually work, including any overtime hours worked. Therefore, employers must have accurate means for tracking all time that hourly employees work.

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 meal breaks, and for any work performed outside the normal workday (e.g., text messages and e-mails and working on projects after normal working hours). 

There are several strategies that can be implemented to maximize accurate time reporting and to maximize productivity for telecommuters.

Employers that utilize automatic deductions for lunch breaks should consider suspending those deductions while employees telecommute because it is more difficult to monitor whether a lunch break was actually taken, including whether an employee “multi-tasked” eating lunch at his/her home work station while working (e.g., taking work calls and responding to e-mails).

Alternatively, employers should emphasize that employees must report their working during lunch to ensure accurate payment for that time.

Because this is ripe for wage and hour claims, it is recommended that non-exempt workers not only submit time records but a summary of what they have done during those hours so that you can monitor productivity. Also, it is extremely important to set forth expected work hours and inform employees not to text, email or perform any work outside these work hours as any time spent on work is hours worked. 

It is critically important to advise remote non-exempt workers that any overtime still needs to be approved in advance. 

During this pandemic, employees who are also parents with childcare responsibilities because of school or childcare closures will have additional obligations at home that will make it more difficult to expect them to perform from 9 to 5 with a 30 minute lunch break. 

In California, Labor Code Section 2802 requires employers to pay for “all necessary expenditures or losses incurred by an employee in direct consequence of the discharge of his or her duties, or his or obedience to the directions of the employer…” 

While California employers should already be paying a portion of an employee’s cellular phone bill that is estimated to cover its use in business, with remote work, additional expenses now must be covered.

This includes internet usage, any costs associated with use of a computer and printer, such as toner and paper.

First, employers should establish a remote work policy to allow specified employees to work from home during the Coronavirus pandemic, or any other future pandemics only.

The policy should address:

• Who will be allowed to work from home as not all jobs can be performed from home.
• Expected hours of work, start and stop times, as well as, times for meal and rest breaks, and reporting obligations 
• Expected productivity standards required of the employee.
• Connectivity and logistical issues such as, how to turn in work, conference calls, and how online meetings will be conducted. 
• Reimbursement of Business expenses
• Parameters for safeguarding the confidential nature of non-public documents and data security protocols
• State that the telecommuting arrangement is temporary and based solely on the extraordinary circumstances presented by the COVID-19 pandemic. 
• State that the policy will be subject to re-evaluation and modification at-will, in the employer’s sole discretion; Once the pandemic subsides, the policy may be terminated, and employee attendance at the workplace will be considered an essential job function.

Second, 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 even though well-intentioned because of the increased risk to older age groups.  

Third, employers should ensure that they are abiding by the requirements to reasonably accommodate persons with disabilities.

See, the Equal Employment Opportunity Commission’s publication: Work at Home/Telework as a Reasonable Accommodation. https://www.telework.gov/guidance-legislation/telework-guidance/reasonable-accommodations/.

FEHA’s website provides guidance on reasonable accommodation also. https://www.dfeh.ca.gov/accommodation/

Should you need help preparing a work from home policy, please feel free to contact Lisa Sherman at (323) 488-2087 or email her at lisa@sherm-law.com.