Flexible schedules, not flexible rules

December 26, 2022

Well, that was weird. The COVID-19 pandemic certainly has changed the way we work. While employees are returning to the office after two years of remote working, not everything is returning to normal. Many employers are adopting hybrid-working schedules, which allow employees to split their work schedule between the office and their home.

While hybrid working can be attractive to employers and employees, it also can present some challenges—especially when dealing with human resources issues. Let’s address some of the HR areas that employers need to be aware of when implementing remote/hybrid schedules in their offices.

Putting in the overtime

Hybrid working gives employees the flexibility to not only work outside of the physical office, but potentially outside of the traditional office schedule as well. Employees can now work at 10 o’clock at night just as easy as they can at 10 a.m. However, what happens when an employee works too much? I know you are thinking that is a good problem to have, but it can lead to wage-and-hour violations for an employer—especially related to overtime pay.

Let’s go over the basics of overtime. Under the Fair Labor Standards Act, employers are required to pay employees overtime for all time the employer required, suffered, or permitted the employee to be worked over 40 hours in a work week.

There is a lot of nuance to the rule related to salary level and job duties that I won’t get into now because that would take an entire article in of itself and, in fact, it has (see the article The FLSA: Attack of the overtime).

Instead, we are going to concentrate on the phrase, “required, suffered, or permitted to be worked” and how that relates to hybrid working. In the before-times (i.e., before COVID), an employer could easily track and limit an employee’s hours. Employees were in the office during the office hours and gone when the office was closed. If an employer wanted to limit an employee’s hours, the organization would just prevent employees from being on-premises—either by telling them not to come in or by sending them home early. With hybrid working, there is nothing to prevent an employee from working away from the office—in fact that is the whole point. The problem arises when employees work without an employer’s knowledge or permission.

A familiar comment I hear from friends and colleagues who have transitioned to a hybrid schedule, is that they often feel like they always are working because there is nothing to signal a natural beginning, middle or end of the day. This can lead to overworking. However, how do employers prevent employees from working overtime absent denying them access to connect to the office remotely?

A simple solution may be to adopt an overtime policy, and make sure all your employees know about it. The policy could be that all employees are prohibited from working overtime unless they get prior approval from a supervisor. This is a sound practice, and every employer should adopt some type of overtime policy. Unfortunately, while it is a fantastic idea, it won’t help employers. This is when the “suffered or permitted” language comes into play.

Under federal labor regulations, work not requested, but suffered or permitted is work time. It is the responsibility of the employer to exercise control over employees to ensure that work, which the employer does not wish employees to perform, is not being performed. The creation of a policy prohibiting unauthorized overtime is not enough.

Federal regulations (literally) state: “The mere promulgation of a rule against such work [overtime] is not enough. Management has the power to enforce the rule and must make every effort to do so.”[1]

What does this mean practically? It means that if employers really want to ensure that employees do not work overtime, they should disable their employees’ ability to work remotely.

A policy against unauthorized overtime is still a good idea because—while it won’t prevent overtime—it does provide the employer with the ability to take corrective action to ensure that it does not continue to happen. Speaking of corrective action, one strategy an employer should never use when faced with unauthorized overtime is to simply not to pay the overtime. This is a terrible idea, and it is a good way to be on the receiving end of a wage-and-hour lawsuit. Even if an employee works overtime—in violation of company policy—he or she still must be compensated for the work he or she performed.

Discrimination is a bad idea

Just as federal law requires employers to pay overtime wages, it also protects workers from discrimination in the workplace. Discrimination or harassment based on certain protected characteristics is against the law. Characteristics such as age, race, sex, disability, and marital status are a few of those protected characteristics.

How is discrimination relevant to hybrid working? Workplace discrimination doesn’t stop just because the workplace looks different. Discrimination can come in many forms.

Workplace sexual harassment—a form of sex discrimination—typically may be thought of as a rude or inappropriate comment spoken or overheard by a co-worker in the office. In the remote world, those kinds of comments still can be made using Zoom or Slack, or whichever communication tools you use in your agency.

In a sense, technology makes harassment easier because remote-work tools offer a bubble in which co-workers can connect with each other outside of the office. This makes it possible for comments to be made privately to one individual without the risk of being seen or heard by other team members.

All employers are encouraged to adopt a sexual harassment prevention policy, which includes a way in which employees can report harassment confidentially. This is not only encouraged, but required in Connecticut and New York state, where most employers are required to have a policy and conduct annual sexual harassment prevention training. Ideally, employees should be able to report harassment electronically, so that remote employees can avail themselves of the protection easily.

Of course, sexual harassment is not the only type of discrimination that can take place. Some discrimination can take on less obvious forms. Let’s use a hypothetical:

Castle Insurance Agency does not have a set hybrid policy, but instead goes by custom, which is to allow employees to work remotely twice a week. Employees can work a third day remotely upon request. One employee, Frank, who happens to be 60 years old, requests a third remote day and he is denied. Meanwhile Karen, who is 30 years old, requests a third remote day and it is granted.

You see the issue, right? Frank and Karen made the same request, but they received different results. On its face, the only difference between Frank and Karen is their age. This employer is flirting with an age-discrimination lawsuit.

Employers also should be aware that many states protect employees from being discriminated against based on their martial status. That may seem like an odd thing to bring up, but marital-status discrimination is an easy trap that can snare employers. Let’s use the same example above to illustrate:

Frank asks for a third remote day and he is denied. While Karen’s request is granted. This time the difference is that Frank is single and Karen is married with two kids. The employer granted Karen’s request because it knew that working from home makes things easier for Karen when picking up the kids at school.

That is very kind of the employer to make things easier for Karen, but in the process, it discriminated against Frank because he is single.

Employers also should be aware of special protections for those with disabilities and how those relate to remote work. By law, employers are required to provide reasonable accommodations to employees with disabilities, so they can perform their jobs. Allowing an employee to work remote, even permanently, could be considered a reasonable accommodation—depending the disability.

For employees with disabilities that impact mobility, or when special equipment is needed to effectively operate a computer, working from home might be an ideal situation. Employers need to be aware that not only are these types of concessions required by law, but they can lead to a more productive employee.

Planning for the unexpected

Perhaps the most obvious benefit of remote working is the ability to work when the office is inaccessible. An office could be inaccessible for any number of reasons. Those of us in the Northeast know that the winter months bring the certainty of a few blizzards that could make getting to the office difficult.

An illness could make the office inaccessible to a particular employee as well. As COVID-19 has taught us, sick employees should stay home and avoid coming into the office. The ability to work remotely presents the opportunity for these employees to work even when the office is inaccessible. But does an employer have to allow it? The short answer is no.

Generally, it is the right of the employer to dictate where and when work is performed. The ability to work remotely is a benefit—not a right. If an employer requires an employee to be on-site—and the office is open—the employee cannot opt to work remotely without the employer’s approval.

In the case of a blizzard, this would mean an employee who is required to be in the office would have to report to the office. If the employee doesn’t do so, he or she could be charged personal time off or unpaid leave, if PTO is not available. On the flip side, if an employee is sick and he or she wishes to work remotely instead of using a sick day, the employer can require the use of a sick day.

Businesses would be wise to adopt policies for dealing with the unexpected. Create a policy for what happens in the case of a weather event or when an employee is sick. It’s important to have a policy and to follow it. Deviating from the company policy can lead to claims of discrimination like those detailed previously in this article.

What did we learn?

I started off this article by saying hybrid working can be beneficial to both employers and employees and spent the next 1,500 words writing about all the hidden dangers of it.

This is not an attempt to scare you, rather I just want to make you aware of the pitfalls, so you can plan for them. Overtime issues, discrimination and dealing with the unexpected are not unique to the remote world. They have existed for as long as work has existed—now they are taking on a different form. The good news is that handling these issues often is as straight forward as adopting a policy and enforcing it uniformly. Those employers that can do this will be ahead of the game.

This article originally appeared in the November 2022 issue of PIA Magazine.

[1] 29 Code of Federal Regulations, Section 785.13

Bradford J. Lachut, Esq.
PIA Northeast | + posts

Bradford J. Lachut, Esq., joined PIA as government affairs counsel for the Government & Industry Affairs Department in 2012 and then, after a four-month leave, he returned to the association in 2018 as director of government & industry affairs responsible for all legal, government relations and insurance industry liaison programs for the five state associations. Prior to PIA, Brad worked as an attorney for Steven J. Baum PC, in Amherst, and as an associate attorney for the law office of James Morris in Buffalo. He also spent time serving as senior manager of government affairs as the Buffalo Niagara Partnership, a chamber of commerce serving the Buffalo, N.Y., region, his hometown. He received his juris doctorate from Buffalo Law School and his Bachelor of Science degree in Government and Politics from Utica College, Utica, N.Y. Brad is an active Mason and Shriner.

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