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What I’ve Been Reading This Week: Labor Department Edition


Over the past week or so, the Labor Department has updated guidance as to several notable coronavirus related matters that impact employers and employees alike.  While there were several other non Labor Department related developments I came across this past week, given the timeliness of these updates, I think it is appropriate to focus on these two updates this week. 

As always, below are a couple articles that caught my eye this week.


Labor Department Issues Guidance on Tracking The Remote Working Hours of Employees

At the end of August, the Labor Department issued guidance for employers and employees alike in regard to the tracking of the remote working hours of employees during the coronavirus pandemic.  Of note, while employers are required to pay their non exempt employees overtime for any work hours over 40 during the course of a work week (per the Fair Labor Standards Act), there is a bit of breathing room with this guidance.  For instance, the Labor Department confirmed that in a remote work environment, an employer must “exercise reasonable diligence” to ensure non exempt employees are paid for all time worked.  This “reasonable diligence” requirement can be satisfied by an employer establishing a system that requires non exempt employees to accurately record and report all time worked.  However, the Labor Department has stipulated that in a situation where an employee fails to report unscheduled work hours during the employer provided system, an “employer is generally not required to investigate further to uncover unreported hours.”  For those interested in the entire scope of the Labor Department’s guidance, I refer you to the link.


Labor Department Updates Informal Families First Coronavirus Response Act Guidance

Some readers might have kids already in school, or perhaps returning within the coming weeks.  Last Thursday, the Labor Department updated its FAQ section as to how the Families First Coronavirus Response Act (“FFCRA”) comes into play with many employees now juggling remote work and the opening of schools.  While I suggested readers take a look at the entire guidance for a thorough overview, I will point out that the Labor Department has stipulated that if a school opens on a hybrid attendance basis (open for in person education some days and virtual learning for other days), eligible employees may take paid FFCRA leave only on the days their children are required to participate in virtual learning...so long as the employee has the need for “leave to actually care for [the] child during that time and only if no other suitable person is available to do so.”  As well, if a school provides parents the choice of whether to allow their child to attend in person or participate virtually (and the parent chooses to have their child participate in virtual learning rather than in person), the employee is “not eligible to take paid leave under the FFCRA because [the] child’s school is not ‘closed’ du to COVID-19 related reasons.”

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