By now most of us who practice labor and employment law are aware that the Department of Labor announced new regulations affecting the application of white collar exemptions under the Fair Labor Standards Act (“FLSA”). A reminder of the broad strokes:
-The Salary Level for the primary exemptions has more than doubled from $23,660 annually to $47,476
-Highly Compensated Employee exemption raised from $100,000 to $134,004
-Non-discretionary bonuses and incentive pay may be used to cover at least 10% of the salary level if certain conditions are met
-Levels to automatically update every three years
-Implementation date of December 1, 2016, with updates to occur on January 1 (i.e., first salary level update to occur on January 1, 2020).
These changes are expected to immediately convert in excess of 20 million American workers from exempt to non-exempt. Below are some tips for counseling employers who currently permit telecommuting (working from home) as to least part of their workforce:
-The safest means of avoiding non-compliance with the FLSA resulting from unpaid work from home is to eliminate telecommuting altogether. However, I’m counseling against this. Telecommuting, where feasible, is a growing trend in American labor. Eliminating telecommuting is a step backward for employers in terms of drawing top talent.
-We have been given the gift of additional time to adjust to these changes (we were expecting 60 days), I counsel employers to advise telecommuting employees of the change in the law and that Company X will continue to permit telecommuting on a “probationary basis” to determine if it is feasible to track work time for telecommuters. This step 1) tells the employee that the company wants to continue providing the accommodation; and 2) gets the employee emotionally invested in the compliance process.
-Implement or confirm the following policies:
-No work from home may be completed without first logging in to company server (our presumed timekeeper);
-Telecommuters must work a set work day with scheduled hours;
-Telecommuters must log off for meal breaks of at least 30 minutes and may not work during such breaks;
-No unauthorized overtime
-Telecommuters must sign off on hours worked at the end of each work week, submitting disputes in writing.
-Employers must spend more time at first monitoring productivity, making sure employees are working while logged in.