New normal. Unprecedented. Challenging. We get it – things are different. Different rules, different issues. For business owners, there are several new issues that employees – and plaintiff lawyers – are already focusing on. Below we break down some of the most pressing issues and ways that businesses can prepare themselves for the coming storm.
Who’s keeping time? New wage and hour issues.
Now that we’re working remotely, tracking employees’ hours is all the more important. Because non-exempt workers must be paid for any time worked (and overtime for any time worked in excess of 40 hours per week), businesses owners who don’t track their employees’ time are at significant risk of violating various wage and hour laws. Some employees may work more hours than authorized in order to rack up their wages. Other employees may not actually work – but will still tell you that they did so they get paid. If you don’t know how many hours your employees are working, you don’t know how much to pay them.
What if all your employees are exempt from overtime?
Given the circumstances, many employees are being asked to undertake new tasks and responsibilities. For example, if an office manager (or someone typically exempt from overtime) is now performing clerical or administrative work, they might lose their exempt status and become entitled to overtime. What if you’ve had to reduce salaries? Most exempt positions require that the employee be paid at or above a certain weekly salary. If the reduction results in a fall below that threshold, then you may have inadvertently changed that exempt employee into an overtime eligible non-exempt employee.
Failure to pay proper wages can result in an enormous legal bill – both in legal fees and damages. Taking some precautionary steps now can save you enormously down the road.
There’s no doubt about it – businesses will be judged on what measures they’re taking (or not taking) to keep their employees and customers safe. Businesses that don’t have adequate protective measures in place will pay the price – in sick employees, lost customers, and defending lawsuits.
Employers have a duty to keep the workplace “free from recognized hazards that are likely to cause death or serious physical harm.” Does your business have a written health and safety policy? Do you have clear, non-discriminatory plans in place to screen employees and customers? Do you know what steps to take in the event an employee gets sick at work? Are you communicating these measures to your employees?
Employers should implement comprehensive safety and health protocols for the workplace. Be proactive and communicate those measures to employees and customers so they know that you’re taking steps to keep them safe. This avoids being perceived as being unsympathetic or, even worse, reckless.
Where’s my accommodation?
Many employees will be reluctant to return to work. Find out why. Are they caring for a child whose school is closed? Are they generally anxious about getting sick? Are they anxious about getting sick because they – or someone they live with – has an underlying medical condition that makes them more vulnerable?
Forcing an employee who has an underlying medical condition to return to work might be asking for a lawsuit. Employers with 15 or more employees must comply with the Americans with Disabilities Act (ADA). Under the ADA and various state laws, employees can request a “reasonable accommodation” that allows them to do their job. Employers must engage in an interactive process to determine what that reasonable accommodation is and must provide that accommodation unless it poses an “undue hardship”. What’s a reasonable accommodation? That depends on the circumstances – but allowing an employee to work remotely is a good start.
Speak with your employees. Listen to their concerns and work with them to accommodate them. At the very least, this communication will help you document the reasons why an employee is reluctant to return. Not a bad piece of evidence to have in a later dispute.
With all the new requirements for the workplace, it’s inevitable that some employees will raise concerns about their employer. Maybe it’s a lack of adequate safety measures, refusing to let employees go out on medical leave, or an outright refusal to return to work. If an employee raises concerns about unlawful conduct – or questionable workplace safety and health measures – various federal and state laws protect that employee from retaliation. Don’t punish employees for complaining.
Employers must maintain (and share with their employees) clear reporting procedures that enable employees to raise their concerns without fear of retaliation. Take extra caution to avoid even the appearance of retaliation against any employee who raises such concerns. This means no adverse change in pay, schedule, title, or other key terms of employment.
These are just some of the issues that employers will have to deal with in the coming months. While it’s difficult to know the “right” way to do things, it’s certainly easier to avoid the “wrong” way of doing things. We’re here to help.