Suffered or Permitted: Tracking Work from a Distance

Yesterday, the Department of Labor (DOL) Wage and Hour Division issued guidance on tracking teleworking hours for non-exempt employees. Reminding employers that the math is simple (an employer is required to pay employees for all hours worked, including remote work), the guidance also recognizes that it can be fudged.

The Fair Labor Standards Act (FLSA) requires employers to pay for work suffered or permitted, even if not requested or scheduled. As for work completed without the knowledge of the employer? Perhaps this work is compensable as well. If an employer “knows or has reason to believe that work is being performed, the time must be counted as hours worked.” In other words, the question is not: did the employer know? The question is: should the employer have known?

When faced with a wage and hour claim, Courts look to whether the employer should have acquired knowledge of hours worked through reasonable diligence. As the DOL suggests, citing Seventh Circuit precedent[1], employers can pin down even the most fluctuating of schedules by providing a “reasonable reporting procedure for non-scheduled time.” 

How can employers avoid wage and hour liability, and what are specific issues remote employers should consider?

Develop a Reporting Procedure

To balance budgets and protect the company from liability, establish an easy to use, easy to understand reporting procedure for employees working off hours. The procedure will also alleviate the burden on you, as the employer, of cross-referencing schedules and calculating time. Per the DOL, though an “employer may have access to non-payroll records of employees’ activities, such as records showing employees accessing their work-issued electronic devices outside of reported hours, reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through this information to determine whether its employees worked hours beyond what they reported.” Where there is a reporting system in place, mere access to this data does not require you to mine for it.

Train Your Managers

Yes, I brought it up again. Policies are only as good as your people, so train your people to promote the policies. As the DOL warns, “… an employer’s time reporting process will not constitute reasonable diligence where the employer either prevents or discourages an employee from accurately reporting the time he or she has worked, and an employee may not waive his or her rights to compensation under the Act.” In other words, if your employees are encouraged, pressured, or threatened to reduce their hours, that reporting procedure you initiated will not be a strong defense.

Implement New Technology

How did you track hours before? If you need a change, there are a variety of timekeeping apps on the market. If you settle on a technology that uses fingerprint, handprint, iris scans, or other biometrics to log in, take care to understand laws related to biometric privacy in states like Illinois, Texas, and Washington.

Check Your States – Including the New Ones!

Do you know the minimum wage in your state? Your city? Of course you do. Do you know the minimum wage in the state your employee now resides after the pandemic resulted in a sudden move to be closer to family?  Maybe not. Similarly, do you know the wage and hour rules in those states? Different states have different definitions of overtime, a variety of restrictions on how quickly and by what method paychecks are issued, etc.

Remember the Safe Harbor

Whether your employees are remote or not, employers who make improper deductions from salaried employees’ wages can lose their FLSA exemption. However, the DOL provides a “safe harbor” provision in the event that such deductions are not willfully made. Remote employers should ensure that this information is provided to employees, and that improper deductions are promptly reimbursed. The safe harbor provision must “clearly communicate” that the company prohibits improper deductions. The DOL states that a communication is clear if it is published in the employee handbook or the company intranet, and contains information on the method by which an employee may report a violation. If you have not circulated your policies since everyone walked out the door, now is the time.

[1] Allen v. City of Chicago, 865 F.3d 936, 945 (7th Cir. 2017), cert. denied, 138 S. Ct. 1302 (2018)

Gone Rogue: How to Prevent Naysayers and Deniers From Trashing Your New Remote World

First of all, I hope this headline isn’t too negative. God knows that’s the last thing you need in 2020. Yet, this blog can’t escape the reality of the moment, nor should it. We are here to help you think through everything that could help or hinder you going remote. America is deeply in a pandemic, very close to Election Day, while immersed in a long-overdue awakening about racial justice. If you think that these huge, national events don’t shift individual behavior and stress relationships, you have never gone home for Thanksgiving. Here we are: excited to push for a healthy, productive, and profitable remote office, but mindful that there are forces around us that constantly pull us backwards. What happens when your people resist your changes, or ignore them?

“The Denier”

One of your managers makes jokes on her Facebook feed about masks, scare tactics, and alarmists. You receive a complaint from an employee. What do you do? That depends. If you are a private company, your employees don’t have free speech. However, they have some right to speech beyond those set forth in the Constitution. They have the right under the National Labor Relations Act to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. They have the right in certain states (California, Colorado, Louisiana, and New York) to engage in political activity. Have they violated your Code of Conduct? Perhaps. Can you retrieve their password to investigate what they are saying? Not so fast. They have a right in other states (California, Colorado, Illinois, and 23 others) to keep that information private.

There may be little you can do, but you must do something. When you receive a complaint, investigate it. Ask questions of the person who complained, collect witness statements, and talk to the alleged offender. Has she engaged in bullying prohibited by your company? Has she said anything that qualifies as discrimination or harassment? A word to the wise: while you must react to a complaint, avoid proactive investigations into the private social media communications of your employees. For one thing, that’s a lot of work. Additionally, monitoring their life in the cloud is an inefficient way to protect your culture and a bad way to pump up morale.

“The Corner Cutter”

You have carefully followed CDC and state health department guidelines to keep your team safe. Primarily, by encouraging employees who can work from home to stay at home. What do you do if faced with a supervisor who asks his direct reports to meet him in person? Are you liable for his actions if an in-person meeting results in an employee contracting COVID-19 and dying? Maybe. While the Senate continues to debate whether liability shields for businesses who spread COVID-19 are a good thing or not, they are actually not yet a thing. We have years to see how the courts treat (and define) on-the-job injuries in the COVID-19 era.

Pursuant to OSHA, employees “who exercise supervisory functions shall, to the extent of their authority, furnish employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Is your corner cutter creating a recognized hazard by calling a meeting? Once again, the answer is maybe. OSHA requires employers to assess occupational hazards to which their workers may be exposed. A number of factors, including the nature of industry, an individuals’ role, and the working environment must be assessed. The point: your company must not breach protocol at the whim of a supervisor. Remind your leaders to seek approval for any arrangement that bends or ignores safety rules, and discipline those who do not comply.

“The Anti-Vaxxer”

A portion of your office staff needs to go into the office on a staggered basis. You are not a healthcare provider or even in the healthcare industry, but you have encouraged your employees to get their flu shots. Officials are worried about a “twindemic” this season, and you are ready to take any action you can to mitigate risk. An employee tells you she won’t get vaccinated. What do you do? Please don’t take an adverse action against the employee (including disciplining, demoting, or terminating employment) because of what you deem to be mere intransigence. You need to dig deeper.

Back in March 2020, the EEOC updated its guidance on compliance with the ADA during a pandemic. First issued during the H1N1 crisis of 2009, the document provides workplace strategies “in a manner that is consistent with the ADA and with current CDC and state/local guidance for keeping workplaces safe during the COVID-19 pandemic.” In a Q&A, the EEOC makes clear that, for employers subject to the ADA and Title VII (those with 15 employees or more), mandatory vaccines are always subject to exemption based on federal law:

Q: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

A: No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

Competing forces will dictate whether you decide to mandate vaccines as the flu makes its debut. It may be that your workforce, your customers, or your landlord make the decision for you; perhaps the pandemic’s progression will change CDC and health department recommendations and so too the guidance of the EEOC. As but one example, as of March 17, 2020, the EEOC currently permits employers to take the body temperatures of employees (typically a medical examination prohibited by the ADA) due to precautions issued by the CDC and state and local health authorities to stop community spread. How could the course of COVID-19 change guidance going forward? It is not clear. However, the EEOC has recently reminded employers to make reasonable efforts to accommodate sincerely held religious beliefs and disabilities when it comes to donning Personal Protective Equipment and submitting to screening procedures. Should a vaccine for COVID-19 become available, learning more about how the virus spreads may influence the judiciary’s assessment of whether refusing one is an undue burden on a specific workplace. For now, however, don’t impose a mandate without exception for an old fashioned flu vaccine. Remember to promptly engage in the interactive process when faced with a religious objection or disability-related concern.

Step 3: Thriving in the Remote Era

A Career Track through COVID

How do employees fast forward when the world is on pause?

We have talked about how you get your remote workplace started (communication, training, navigating childcare issues) and how you thoughtfully set it up (handling reimbursements, understanding mental health issues). Today, we embark on a longer conversation about why we are really here: to make lemonade out of the lemon that is 2020. This venture is not without challenge, but it is also filled with opportunity. How do I know that? Look at all the companies that proactively went remote in recent days – some until 2021, some indefinitely. A commitment to #remotefirst is growing nationwide, and your employees should know that they can build a career at your company – even while at home.

Ownership Outside the Office

Compensation is but one factor in employee satisfaction, and is often focused on by employers at the expense of others. Especially during a pandemic, it seems that you need more than money to combat isolation, and feelings of disconnect, among your employees. In a series of studies conducted by Harvard Business School Professor Francesca Gino, she found that “when employees feel a stronger sense of ownership, they are more inclined to engage in generally helpful behaviors.”[1] Employee ownership can come in many forms, and is often provided (or hoarded) by supervisors who have differing management styles. Now more than ever, you should train supervisors to seek out opportunities of ownership for their direct reports.

But herein lies the first challenge: how can you increase feelings of ownership in 2020? Being outside the office necessarily removes some opportunities. Take one example:

A company has a flat structure, with opportunities to climb the ladder few and far between. To increase feelings of ownership, the company encourages employees to join committees to plan charitable events, holiday parties, in-office celebrations, and more. After COVID-19, the company downsized its fundraising budget, and holiday parties became … illegal … so they downsized that budget, too.

What steps can you take to increase ownership? Consider implementing the following:

  • Provide 360 reviews, assessing both employees and their bosses. Look at the flow of work. Are certain supervisors – faced with the uncertainty of COVID – keeping work they would regularly delegate?
  • Encourage supervisors to reassess project management. Is a time zone mismatch (people do move around in a remote world) causing a bottleneck on the team? Is it time to break the team into smaller ones to provide a more productive video chat?
  • Establish new committees. Can the people who planned the annual potluck set up a virtual game night? Those skills are transferable!

Culture Without a Celebration

What is company culture? It should come as no surprise that, when done right, it’s a feeling, not a mission statement. Culture take years, maybe decades, to grow. Yet it is fragile, and fleeting; it can leave you quietly. When people talk about a good culture, they share warm stories of softball games, family gatherings, graduations, and vacations with colleagues who became friends; marriages and babies celebrated, and loved ones mourned together. To be sure, many of us miss those milestones (not to mention, free cake). But there is more to your culture than frosting and beer.

Your culture is defined by the people you welcome into your company and those you do not. Strive to hold onto that sense of what it means to be a “good fit” with your people. Continue to celebrate each other’s wins, and be there for the losses. Your colleagues are only a phone call or text message away.

What are some ways you can maintain your culture?

  • Interview as well as you did before. If you have built a culture to be proud of, maintain it. Ensure that candidates meet as many people as possible virtually.
  • Create a space for sharing. Do you have a newsletter? Can you interview an employee each week about their newest hobby, and share milestones such as birthdays, graduations, and marriages (yes, all are still happening!)
  • Provide opportunities to connect in real time. I was excited to see my firm create an opportunity for us to meet one-on-one, in Zoom breakout rooms, to catch up with colleagues in different practice areas.
  • Continue to be inclusive. Do you have staff uncomfortable being on video? Plan a week where everyone makes one phone call. Call it “phone a friend” or “timewarp.”
  • Use the COVID-19 crisis as an advantage. While it is difficult for any of us to imagine many positives to the pandemic, we can create some. Providing support means something different than it did last year. How can you be known for crisis management? What can you offer to struggling employees? See my last post on mental health for some insights.

Mentorship Without a Menu

Remember when you were a new employee, and somebody took you out to lunch? After fumbling with the menu (surely lobster is not appropriate!), you hopefully engaged in friendly banter about the weather, kids, that menu (an Old Fashioned does look good, but this isn’t 1957 … hah!), and of course, your future. Those planned conversations can spark organic mentorships.

Mentoring is critical to your culture, and to professional development. How can you foster mentorship in the new remote world? I think of mentoring when I read the book, “Are you my Mother?” to my children. In the book, a little bird aimlessly walks around town asking animals who are not birds if they are his mother. Of course, he is rejected (sometimes a bit harshly), and in a series of unfortunate events ends up in a power shovel. Thankfully, the power shovel drops him back into his nest and into the wings of his loving, though negligent, mother.

Like the little bird, a junior member of your team will think that their special person is just a question away. They will literally ask, “Will you be my mentor?” no matter the obvious lack of fit. Yet, this relationship must develop to be valuable. It cannot and should not result from a coordinated matching program, nor should it come from a random lottery of names. The best mentor-mentee pairs know two things:

  1. They aren’t each other’s only mentee or mentor
  2. They didn’t set out to be mentor-mentee

Now more than ever, you should make it your goal to foster relationships in your company. This is not the time to shelve opportunities for mentorship, but to increase them. Mentors can help tie a junior employee into a culture. Mentors can model ownership. But how can you enable the organic formation of these relationships remotely?

  • Check in versus Check on. Talk to your leaders. Are they reaching out to employees just to see how they are, or only on how their work is going? There is a difference, and employees notice. Encourage leaders to take a couple minutes out of their busy days to make time for more junior employees.
  • Use technology when shyness is an issue. Do you have a great leader who is not so great at small talk? Programs like the online platform Icebreaker can provide her with “conversation starters” if she wants to engage an employee for a video chat.
  • In a pinch, think about “cross-company” mentoring. In recent years, more companies are turning to mentorship programs outside their companies. While this set up is far from organic, some of these companies use a host of common interests to thoughtfully place mentees with mentors. If it’s your only option, it might be a morale boost for employees who seek wisdom and guidance during a difficult time.


Step 2 (cont.): Mental Health

Employees must feel well to do their jobs well. Since March, one of my amazing partners has reminded me: “On the plane, they tell you to put your mask on first before assisting others.” The same premise can be applied on the ground. In this week’s post, we will explore mental health trends, ADA law, and how reasonable accommodations may look radically different in a remote workplace. We will also give practical tips on how to better train managers and Human Resources to navigate accommodation requests with compassion and empathy.

Anxiety and Depression on the Rise

Four months have passed since your employees went home and stayed there. Since that time, the virus has spread, unemployment has soared, George Floyd was killed, and the economy has taken a dive like never seen in our (recorded) history. It should be no surprise that newly remote employees are worried about far more than how to stay focused when the television is right there. Today, remote employees are worried about their health, their family’s health, their job, and their community. They are worried for their lives and their children’s lives. They are worried about their Black friends and family. They are worried about the election. They are worried about how worried they feel all of the time. Sleeplessness, isolation, uncertainty, and a barrage of negative stories in the media contribute to an increase risk for suicide.[1]

Some employees may be more impacted than others. Employees who have undiagnosed mental health conditions. Employees who have managed mental health conditions their entire lives. Employees who live alone may feel especially isolated without the daily check-ins around the company’s coffee machine. Employees who are deemed at-risk for COVID-19 due to age or underlying conditions may be more like to suffer anxiety, hypochondriasis and agoraphobia. According to a report by McKinsey & Company, compared with White Americans, Black Americans are more likely to have concerns over job security during the pandemic.

The ADA and Mental Health

Last week, the American with Disabilities Act turned 30 years old. The Act, which covers employers with fifteen or more employees, prohibits discrimination on the basis of a disability. (So, too, do state and local laws, many of which apply to employers with just one employee). The term “disability” means, with respect to an individual:

  • a physical or mental impairment that substantially limits one or more major life activities of such individual;
  • a record of such an impairment; or
  • being regarded as having such an impairment.

The term “mental impairment” is broader than you may realize. EEOC uses as examples of mental impairment “emotional or mental illness[es]” “major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.” 

As we anticipate mental health issues worsening, or perhaps springing from, this unprecedented era, employers must be careful to avoid claims of discrimination in their communication with and treatment of affected employees. Smaller employers are not necessarily exempt from claims: in a growing number of jurisdictions, including California, New York, and Illinois, state and city human rights statutes protect all employees from discrimination.

Navigating Mental Health Issues Remotely

Back in April, the EEOC published a series of FAQs about the ADA in the midst of COVID-19. Among other things, the EEOC stated that reasonable accommodations at home may be different than those needed at work, and that COVID-19 may result in “additional or altered” accommodations.

What can you do now to ensure a safe, healthy remote workforce?

Look for Signs

Train your staff to look for signs and symptoms of mental health struggles. Do not use the remote work environment as a way to invoke plausible deniability. For one thing, your employees are people. Caring about their mental health is not only good for your business, but also good for the world. Employees who suddenly disappear, fail to participate on virtual calls, or become angry or hostile in communications, might be in need of some help. Another point? Morale. People care to work for you when they feel you care about them. Reach out to your people.

Proactively Provide Access to Resources and Explanations of Benefits

Do you have an Employee Assistance Program? Ensure that your Human Resources group remind employees of the benefit, which provides confidential counseling to employees (often for no charge to the employee). Do you have a telehealth benefit covering mental health? Provide your employees with updated information. Additionally, California, Hawaii, New Jersey, New York, and Rhode Island require employers to have short-term disability insurance for injuries, treatment, or continuing supervision. Depending on your policy, employees with mental health issues may qualify.

Engage in the Interactive Process

Just like pre-pandemic times, your Company must engage in the “interactive process” when faced with a request for an accommodation. As part of that process, “the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.”[1] While jurisdictions such as the Seventh Circuit has held that a medical leave with no planned end date may not be reasonable, an extended leave, perhaps tied to an event such as a vaccine, may be reasonable. Similarly, intermittent leave (where an employee takes periodic leaves of absence to receive care for and/or recover from a covered disability) may be reasonable.

Additionally, an employee who is suffering may not have the ability to ask for help – whether due to incapacity, anxiety, stigma, or fear of retaliation. The Seventh Circuit held in Bultemeyer v. Fort Wayne Community Schools that where the employee has mental disabilities, the communication process becomes more difficult and the employer must meet the employee halfway. Therefore, if the employee may need an accommodation but does not know how to ask for one, the employer should do what it can to help.

Avoid Unintentional Discrimination

The interactive process is flexible and requires that the employer in good faith work to accommodate the employee. You and your staff must assess each employee as an individual human being with unique issues. Additionally, you will need to assess your business needs.

Avoid comments such as, “It’s 2020 … we’re all going to have to just roll with it.” Not everyone can roll with things. Do you have an employee who started taking medication that makes her groggy in the morning? Perhaps the remote environment lends itself to her logging in at 10 am, rather than 8:30 am. Do you have an employee suffering from OCD? Perhaps he is unable to adjust to your new staggered work schedule that changes as much as the laundry. You can accommodate that particular employee by simply giving him back a routine.

As I will continue to say until I am blue in the face: communication is key – especially when we are apart. In 2020, your leadership must lead with empathy. It all starts with an open mind and a flexible culture.

If you are somebody you know is having suicidal thoughts, call the National Suicide Prevention Lifeline (Lifeline) at 1-800-273-TALK (8255), or text the Crisis Text Line (text HELLO to 741741). Both services are free and available 24 hours a day, seven days a week.

[1] Leo Sher, The impact of the COVID-19 pandemic on suicide rates, QJM: An International Journal of Medicine, , hcaa202,