With so many nonexempt employees working remotely, what should be our key wage and hour compliance priorities?

A key priority with nonexempt employees working remotely is managing time and tracking hours worked. Employers need to clearly define what constitutes work – including checking email and managing non-work interruptions – and instruct employees when they can and cannot perform work. It’s important to train your supervisors on what to do when they have reason to believe an employee is not working during scheduled hours or working outside scheduled hours.

Another key priority is expense reimbursement. Many states require reimbursement for business expenses, and even under the FLSA, unreimbursed expenses may implicate minimum wage and overtime. Initially, we recommend documenting whether the remote arrangement is voluntary. If an employee is choosing to work from home, it may be that none of the remote-work expenses are necessary, or reimbursable. Where reimbursement is required, there is no one-size-fits-all answer to the question of how much to reimburse, and state law varies widely. We recommend that employers consider the applicable law where the employee is working and do their research on the actual supplies and resources the employee needs to work. Communicate with the employee about the reason for your decision, and give the employee a chance to weigh in.

Finally, we’re seeing a rise in the wandering worker phenomenon. Employees who are authorized to work remotely are not just working from home. Increasingly, they’re choosing to work from, well, anywhere. And that “anywhere” might be in a different jurisdiction, with different laws.

As a priority employers need to document where their employees are working so they know which wage and hour laws to apply – everything from minimum wage and overtime, to expense reimbursement, exemptions, meal and rest breaks, wage statements, sick leave, and the list goes on.

Chances are that the wage and hour laws of the jurisdiction where your wandering workers are located will dictate your compliance obligations. As always, please consult your Littler attorney for additional guidance on these or related issues.