Here’s new guidance on COVID-19 and FLSA

By Mike O’Brien bio

For managers in charge of HR, the so-called lazy days of summer have been anything but lazy, as they strive to adapt to the COVID era and stay up to date on seemingly constant new government guidances. The Department of Labor has provided more information for employers regarding pandemic-related wage and hour issues. Specifically, the agency answered questions about hazard pay, FLSA’s overtime and minimum wage exemptions, and what time is compensable with respect to pandemic-related telework arrangements:

• DOL notes that hazard pay is not required under FLSA, but may be required under state or local laws, collective bargaining agreements, or company policies.
• DOL makes clear that taking leave under the Families First Coronavirus Response Act (FFCRA) will not jeopardize an employee’s exempt status under FLSA’s executive, administrative, and professional overtime and minimum wage exemptions.
• Moreover, exempt professionals can perform nonexempt duties during the COVID-19 public health emergency and not lose their exempt status. According to the DOL, the FLSA “regulations permit an employee who otherwise qualifies for [an overtime exemption] to perform nonexempt duties during emergencies that ‘threaten the safety of employees, a cessation of operations or serious damage to the employer’s property’ and which are beyond the employer’s control and could not reasonably be anticipated.” The current pandemic is such an event. An employer may temporarily require an exempt employee to perform nonexempt duties without risking the exemption, but must still ensure they are paid on a salary basis (at least $684 per week).

DOL also answered two questions relating to pandemic-driven telework arrangements and compensable time:

I am an employer who allows my employees to telework during the COVID-19 emergency. Now that my employees are no longer at my worksite, how do I determine their hours of compensable work? Do I have to pay my employees for hours I did not authorize them to work? Do I have to pay them for hours worked even when they do not report those hours?
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Work performed away from the primary worksite, including at the employee’s home, is treated the same as work performed at the primary worksite for purposes of compensability. Therefore, you must compensate your employee for all hours of telework actually performed away from the primary worksite, including overtime work, in accordance with the FLSA, provided that you knew or had reason to believe the work was performed. This is true even of hours of telework that you did not authorize. You also must compensate your employee for unreported hours of telework that you know or have reason to believe had been performed. However, you are not required to compensate your employee for unreported hours of telework that you have no reason to believe had been performed, i.e., where you neither knew nor should have known about the unreported hours. In most cases, you may satisfy your obligation to compensate your teleworking employee by providing reasonable time-reporting procedures and compensating that employee for all reported hours.

I am an employer who allows my employees to telework during the COVID-19 emergency. I would also like to give my employees flexibility in hours of work so they can take time out of the normal workday for personal and family obligations, such as caring for their children whose schools have closed. If I allow my employees to begin work, take several hours in the middle of the workday to care for their children, and then return to work, do I have to compensate them for all of the hours between starting work and finishing work?

No. Under WHD’s broadly applicable regulation and its continuous workday guidance, all time between the performance of the first and last principal activities of a workday is generally compensable work time. However, the Department recognized that applying this guidance to teleworking arrangement would discourage needed flexibility during the COVID-19 emergency. As such, the Department stated in the Family First Coronavirus Relief Act rulemaking that an employer that allows employees to telework with flexible hours during the COVID-19 emergency does not need to count as hours worked all the time between an employee’s first and last principal activities in a workday. For example, assume you and your employee agree to a telework schedule of 7–9 a.m., 11:30–3 p.m., and 7–9 p.m. on weekdays. This allows your employee, for instance, to help teach their children whose schools are closed, reserving for work times when there are fewer distractions. Of course, you must compensate your employee for all hours actually worked—7.5 hours—that day, but not all 14 hours between your employee’s first principal activity at 7 a.m. and last at 9 p.m.

The full document is available here: https://www.dol.gov/agencies/whd/flsa/pandemic

GOP leaders unveil proposal to limit COVID lawsuits by workers. As Congress continues to wrestle with issues surrounding another COVID-relief package, Senate Majority Leader Mitch McConnell is pushing a litigation shield for employers as part of the legislation. The GOP’s proposed measure, the “Safe to Work Act,” would require plaintiffs suing for coronavirus exposure at work to meet a higher standard than is normally required in negligence cases. Employers would be liable only for failing to make “reasonable efforts” to comply with applicable public health standards and engaging in gross negligence or intentional misconduct that resulted in coronavirus exposure causing injury to the worker. Moreover, plaintiffs would have to prove such violations by a higher burden of proof—that of “clear and convincing evidence,” rather than the “preponderance of evidence” standard normally used in such cases. The measure would also allow employers to remove COVID-exposure claims from state courts into federal courts, and provide protection for unintentional violations of other employment laws. State laws providing lesser liability protections for employers would be preempted by the Safe to Work Act.

McConnell says no bill will pass the Senate without such a measure, vowing: “We’ll preserve accountability in the event of gross negligence or intentional misconduct, but we’re not going to let trial lawyers throw a party on the backs of the front-line workers and institutions who fought this new enemy on the front lines.” Critics of the legislation call it unnecessary, noting that of all pandemic-related cases filed across the nation, only a small fraction have been brought to address workplace exposure. Democrats oppose sweeping limitations on liability, arguing instead for an OSHA provision setting forth national safety standards. The proposed “Safe to Work Act” can be found in full here: https://www.cornyn.senate.gov/sites/default/files/SAFETOWORKAct.pdf

Tenth Circuit recognizes sex-plus-age job bias claims. Ready for some HR news that isn’t COVID-related? Tenth Circuit Court of Appeals has issued an opinion in Frappied v. Affinity Gaming Black Hawk, LLC, 2020 WL 4187420 (10^th Cir. July 21, 2020). Frappied was a case brought by former casino workers, eight of whom were females over forty who argued their terminations were driven by job bias against older women.

Some background may be helpful here before delving into the court’s opinion. Claims of discrimination based on sex plus another characteristic are referred to as “sex plus” claims. Previous precedent had established that Title VII prohibits discrimination based on a combination of characteristics protected under the statute (for example, sex plus race). It also prohibits discrimination based on sex plus another characteristic not protected under Title VII—a recent Supreme Court opinion used the hypothetical example of an employer who fired female Yankees fans but not male Yankees fans. Such actions would still be unlawful discrimination based on sex. “Termination is ‘because of sex’ if the employer would not have terminated a male employee with the same ‘plus’ characteristic,” the Tenth Circuit observed.

Frappied presented a slightly different question, whether sex-plus-age claims are viable. Age—unlike being a Yankees fan—is a protected characteristic, but it is protected under a different statute than Title VII (the ADEA). Although some trial courts and the EEOC had already concluded that sex-plus-age claims were viable under Title VII, no federal circuit court had decided the question. The Tenth Circuit upheld sex-plus-age claims, concluding: “Discrimination against older women that does not target older men is a form of sex discrimination.” In support of its decision, the court noted: “Research shows older women are subjected to unique discrimination resulting from sex stereotypes associated with their status as older women. This discrimination is different from age discrimination standing alone.” (Internal citations omitted).

While it is too soon to know whether other federal circuit courts will follow suit, Frappied serves as yet another reminder that employers must avoid sex stereotyping and base all employment decisions on legitimate, job-related factors.