Especially when the weather becomes unpredictable, and more often, when employees are working from home, we get a lot of questions about how to develop and implement work from home policies for maximum legal defensibility.
Employee pay issues differ depending on whether the employee is exempt/salaried or non-exempt/hourly. Because exempt employees must, generally speaking, be paid their full salary, the questions we receive most frequently center around non-exempt or hourly employees.
Here are the answers to our top three frequently asked questions:
Do we need to pay hourly employees for sending and receiving work-related calls, emails, or texts from home?
The answer to this question depends on the amount of time a single hourly employee is spending. Under applicable wage laws, time considered to be “de minimus” or “insubstantial” is excluded from the definition of compensable “hours worked.” According to the United States Supreme Court, “de minimus” or “insubstantial” is defined, in the employee pay context, as a few seconds or minutes of work.
What does mean for you, as an employer? If your hourly employees receive a single short email or text every now and then, there may be no cause for concern. However, if employees are contacted at home regularly, your obligation to pay could be triggered, particularly where the employee’s response takes more than a few minutes.
Work from Home Policy: This may be addressed under a work from home policy by requiring all non-exempt/hourly employees to report all calls, emails, and texts that are not “de minimus.” Also, management should be discouraged from contacting hourly workers except for genuine emergencies.
Do we need to pay hourly employees who work from home without permission?
Generally speaking, yes, all work, even work without approval, must be compensated. The law does not, however, require you to pay employees who worked from home when the employer did not know and, importantly, did not have reason to know. (Keep in mind, unless there is no evidence of work product, this can be tricky to prove.)
What does this mean for you, as an employer? If an hourly worker reports working from home without permission, you will probably need to pay him. However, you may also discipline the employee for insubordination, if your workplace policies prohibit unauthorized time worked.
Work from Home Policy: Your work from home policy should require employees to request permission prior to working from home and require that all time, even unauthorized time, be reported. Employees should be warned that they will be subject to discipline for unauthorized time worked.
Do we have to offer working from home as a reasonable accommodation for disabled employees?
Not necessarily. Based on recent EEOC decisions, you will be expected to show that you at least considered the employee’s request to work from home, in light of the organization’s needs and resources. If the employee’s working from home would create an undue burden, there is no legal obligation to offer working from home as an accommodation.
What does this mean for you as an employer? If an employee requests to work from home as a reasonable accommodation, you would want to make sure to engage in the interactive process with the employee to determine whether this accommodation would create an undue burden for your organization and whether there are any other accommodations that would meet the employee’s needs.
Work from Home Policy: This may be addressed by referring employees to your reasonable accommodations policy to address any requests to work from home as a reasonable accommodation.
Do you have any questions? If so, please contact your legal counsel or one of the employment attorneys in our office. We would be glad to help you!
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.