It is a pretty safe bet that, until there is a workable, widely distributed vaccine, better treatments for COVID-19, or both, our lives—including our work lives—will not go back to any semblance of normalcy. It also doesn’t take much imagination to predict that remote or teleworking (for office-type jobs) will remain widely available after the pandemic.
These changes to the workplace may usher in significant changes in our employment laws, including in workers’ rights to paid overtime.
The main law regulating overtime is the Fair Labor Standards Act (or “FLSA,” for short). If you are unfamiliar with it, the U.S. Department of Labor has excellent introductory resources for the uninitiated, including an overview page with links to various guides and even frequently asked questions related to the FLSA and COVID-19.
In addition to addressing minimum wage and child labor, the FLSA sets the requirements for paying qualifying workers overtime. Generally, a worker qualifies for overtime at one-and-a-half times the regular pay if the worker:
(1) does NOT belong to an exempt category (e.g., executive, administrative, and professional employees); AND
(2) has worked more than 40 hours in a given workweek.
Of course, as is often the case in the law, the devil is in the details, and you should contact the Department of Labor or an attorney to determine if you qualify. But the FLSA is no fringe provision. It affects a large majority of American workers. According to government figures, of the roughly 157 million employed in 2019, some 135 million of us are impacted by the FLSA.
So, with this primer out of the way, how will the COVID-19 pandemic affect overtime pay and the enforcement of the FLSA?
Employers, employer-side attorneys and employer friendly media appear to be hyperventilating about a “litigation trap,” anticipating that workers who used to be exempt from overtime will seek to be reclassified as non-exempt because they are now working from home, and their jobs and job duties have changed. We will see if this happens.
But I am worried about something more basic. With employers laying off substantial numbers of employees during this severe recession, there is a real danger that those employees who remain could be required to work longer hours to compensate for their fired colleagues and that, with companies tight on cash, many might try to cut corners on paying lawful, required overtime.
This does not appear to be an idle musing on my part. In a stroke of supreme irony, the New York Department of Labor, strained by the massive numbers of unemployment claims it is processing these past months, is being accused by the New York State Public Employees Federation of underpaying its employees on overtime pay.
We will likely need to wait and see if this is an outlier or the beginning of a trend. But it would stand to reason that a massive recession could result in an outsize number of employers ducking, or attempting to duck, their responsibility to pay overtime.
Look in this space for an update on this situation in the coming months.