Labor Department Answers More Questions About the FLSA During the COVID-19 Pandemic

The United States Department of Labor has issued six new Questions and Answers related to interpretation and enforcement of the Fair Labor Standards Act (“FLSA”) during the COVID-19 pandemic. The FLSA is the federal statute which establishes the federal minimum wage and which also determines which employees must be paid overtime compensation for working more than 40 hours per week (non-exempt employees) and which employees are exempt from that requirement (“exempt employees”). Click here for the DOL FAQs. The new questions and answers begin at Question No. 14. Here is a brief summary:

  • Pay for Telework. Employers must pay for all hours of telework which they knew or had reason to know was performed by non-exempt employees. This applies even if the work was not authorized. Employers are not required to pay employees for unreported telework time that they had no reason to believe had been performed.
  • Continuous Pay. Non-exempt employees who are teleworking do not have to be paid for all hours between when they start working each day and when they stop working each day. An employer which provides flexibility to teleworking employees to attend to child care and other personal requirements (flexible hours) must only pay those employees for hours actually worked.
  • Non-Exempt Duties Assigned to Salaried Employees. During the COVID-19 public health emergency, employers may reassign exempt employees to perform non-exempt duties and maintain their salaried status so long as the employer continues to pay those employees on a salary basis and at least $684 per week.
  • Hazard Pay. There is no FLSA requirement for hazard pay. FLSA only requires payment of the federal minimum wage ($7.25) plus time and one-half of employees’ regular rate for all weekly hours in excess of 40. Some states and localities have higher minimum wages and some states and localities may have hazard pay requirements.
  • Exempt Employee Status During FFCRA Leave. Taking paid sick leave or expanded family and medical leave under the Families First Coronavirus Response Act does not affect employees’ exempt status under the FLSA.
  • Salary Reductions for Exempt Employees. Employers are not barred from reducing exempt employees’ salaries. However, salary reductions must be implemented prospectively — employees need to be told of salary reductions before the start of any weeks or weeks in which salaries are reduced. In addition, salaries may not be reduced below $684 per week.

For more information, please contact Joseph Hofmann or reach out to the Stevens & Lee attorney with whom you regularly work.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.