It’s hard to believe many of us have been working from home because of the COVID-19 outbreak for more than a year. In addition, many teleworkers have been operating on flexible schedules. The consistent question for employers is: How do we pay nonexempt employees working flexible schedules from home? Here is the answer (at least for now).

Virtual Schooling’s Impact on Work Schedules

Yes, many people have been working away from the workplace for more than an entire year. I almost can’t believe what I’m writing! And I know I’m not alone.

In addition, many of us have been juggling virtual school for our children while we work from home (please send wine). Although I don’t have a crystal ball, I think by the summer or fall we’ll all see some relief (fingers crossed).

Until then, many parents are continuing to deal with childcare issues while working from home. Consequently, some are working with more flexible schedules. For example, to accommodate virtual schooling, an employee may work between 6:00 a.m. and 9:00 a.m., between 3:00 p.m. and 6:00 p.m., and between 9:00 p.m. and 11:00 p.m.

DOL’s Rule Change Remains in Place

The U.S. Department of Labor (DOL) previously adopted a “continuous workday” rule, which provided that all time between an employee’s first and last “principal activity” was working time to be paid by the employer. One exception to the rule (when an employee doesn’t need to be paid) covered periods when:

• The individual was completely relieved from all work duties.
• The amount of time was long enough the employee could use it effectively for her own purposes (usually at least 30 minutes for a meal break).

Because of the pandemic, in early 2020, the DOL suspended the continuous workday rule for employees working from home. In guidance released at the end of the year, the agency confirmed it’s continuing to relax the rule for such workers.

Best Pay Practices

The DOL has made clear employers should do the following:

• Pay nonexempt employees for all time actually worked, including overtime. You aren’t required to compensate employees for unreported hours worked while working remotely for COVID-19-related reasons unless you knew or should have known about it.
• Keep track of and accurately record the time worked by nonexempt employees, including all start and stop times for each day worked.
• Agree with nonexempt employees in advance (and in writing) on the alternative schedule and hours to be worked.

For example, if your employee is assisting with virtual school, you might be able to memorialize the agreement with the following e-mail or memo:

This is to confirm you have advised that you generally will be working the following schedule, Monday through Friday: between 6:00 a.m. and 9:00 a.m.; between 3:00 p.m. and 6:00 p.m.; and between 9:00 p.m. and 11:00 p.m. You generally will not be working between 9:01 a.m. and 2:59 p.m., and between 6:01 p.m. and 8:59 p.m. Be sure to record your actual hours worked every day and report them to your supervisor on a daily or weekly basis. You agree to accurately report your start and stop times every day.

Remember, your state’s rules for compensable working time could be more restrictive, although that isn’t the case in Florida.

Final Note

Here’s to hoping life gets a bit easier for everyone in the coming months, and virtual school for an extended period of time will be something we laugh about one day.

Stephanie Turk is an attorney with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., in Miami. On the litigation side, she defends employers in a variety of employment matters, including discrimination, retaliation, wage and hour, and whistleblower claims. She represents clients in federal and state courts, in nationwide arbitrations, and before administrative agencies. You can reach her at sturk@stearnsweaver.com.