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Overtime From Your Living Room?

Best Ohio Overtime Law Attorney And Top Coronavirus Employment Law Lawyers Reply: Can I work overtime while working remotely? Does my boss have to pay me overtime when I’m working from home? Should I be keeping accurate records of my hours while working at home? Work RemotelyFrom In Your Living Room?

COVID-19 has drastically changed the employment environment. In response to the global Coronavirus pandemic and shelter in place mandates, many non-essential and essential businesses alike have moved to work remotely from home to mitigate the spread of Coronavirus. It is a strange adjustment to work remotely, as my fellow wage and hour attorneys and other staff at The Spitz Law Firm can confirm, and depending on a given employee’s position, it may create a larger workload. This influx of work may force employees working from home to work overtime hours.

Overtime hours begin to accrue once an employee has surpassed 40 hours in one week of work. The Fair Labor Standards Act (“FLSA”) is a federal law that requires employers to pay employees a minimum wage per hour and overtime pay at time and a half. Specifically, the FLSA at 29 U.S.C. § 207(a) requires covered employers to compensate non-exempt employees at overtime rates for time worked in excess of statutorily defined maximum hours while the FLSA’s 29 U.S.C § 216(b) creates the cause of action that allows employees to sue employers who violate the overtime compensation laws. For more general information about overtime pay and how it applies to employees including during the COVID-19 crisis, check out our other wage and hour lawyer blogs (See: Overtime Wages: Coronavirus Employment Law Frontlines; Is It Legal For A Company To Not Pay Overtime?; What Can We Do If Our Job Doesn’t Pay Anyone Overtime?; and My Job Won’t Pay Me Overtime Wages! What Can I Do?).

But wait, what is a non-exempt employee? Non-exempt employees are generally employees who, among other criteria, are paid an hourly wage as opposed to a salary. According to 29 U.S.C. § 213(a)(1), exempt employees generally include administrative employees, computer employees, executive employees, highly compensated employees, creative professional employees, learned professional employees, teaching professional employees, and outside salespeople. For more discussion about non-exempt employees check out some of our other blogs from the top Ohio wage and hour lawyers (See: Are Managers Entitled To Overtime Pay? I Need A Lawyer!; Does Just The Title Manager Stop Me From Getting Overtime Pay? I Need A Lawyer!; Can Hourly Workers Be Exempt From Overtime?; and Are All Professionals Exempt From Overtime Pay?).

So, in general, any non-exempt employee who works more than 40 hours in a work week, is entitled to at least time and a half pay for every hour over 40 hours they work- even if they work remotely. But, does this apply to employees working from home? The short answer is yes, and the courts have made decisions consistent with this answer. For example, The United States District Court for the Middle District of Florida fleshed out the issue of wages for overtime hours worked from home in Auer v. Florida Neurological Center, LLC, 2018 U.S. Dist. LEXIS 209568 (M.D. Fla. Nov. 26, 2018). This wage theft case involved an hourly worker, Andrea Auer, who sued her former employer, Florida Neurological Center, LLC, under the FLSA for compensation of unpaid overtime wages. The defendant, Florida Neurological filed a motion for summary judgment. Summary judgement is the court’s way of accelerating its decision in a case by accepting all material facts in a light most favorable to the employee/plaintiff as true and making a judgement of whether a valid claim has or hasn’t been raised. The defendant’s argued: “Defendant argues that it should not have to pay Plaintiff for overtime she allegedly worked from home while an hourly employee because it was not aware she was working from home.” (Auer at page 6). Finding that questions of fact existed as to whether the Florida Neurological Center knew thatAuer was working at home, the Court rejected the employer’s argument and held accordingly:

“Defendant seeks summary judgment on Plaintiff’s claim for overtime compensation for work allegedly performed from home while she was an hourly employee. Defendant claims that Plaintiff never worked non-exempt overtime hours from home, and even if she did, Defendant should not be liable for any overtime wages because Defendant had no knowledge that the work was being performed… However, there is evidence to suggest that Plaintiff was performing overtime work from home, and that Defendant had knowledge. Plaintiff detailed the extensive amount of work she allegedly performed from home, including answering emergency phone calls, handling prior authorizations, prescription refills, Acthar research, performing sleep studies and working on the backlogged records that needed to be converted to electronic format…According to Plaintiff, Defendant downloaded the eClinical program onto her private computer so that she could work from home. Plaintiff testified that she repeatedly complained to [her bosses] about not being paid for the overtime hours she had worked, but that they refused to pay for the hours…Accordingly, there is evidence from which a jury could conclude that Plaintiff was working off the clock from home, with Defendant’s knowledge. Thus, I Submit that summary judgment should be denied on this ground.” – Auer v. Florida at pages 8-9.

Trusting this opinion, it appears that any employee who works from home will have a claim to be paid overtime wages after working over 40 hours if they can show substantial evidence that (1) they actually did work from home; and (2) that their employer was aware that they were working from home.

However, employees working from home should be cautious and pay close attention to the policies of their specific employer. Some employers have instructions on how to log hours when working from home, and the failure to do so may disqualify employees from collecting wages from the hours they worked. The United States District Court for the Southern District of Georgia set a standard in Jackson v. Corr. Corp. of Am., 2014 U.S. Dist. LEXIS 17224 (S.D. Ga. Feb. 11, 2014) that an employee working from home who brings a claim for overtime wages against their employer, bears the burden of producing evidence sufficient to show that the employee actually worked the hours for which they are claiming compensation. In this case, the employee was working from home and was instructed by her employer to keep an accurate log of her hours but she only filled out a time sheet for one week and stopped there. The opinion states: “Even considering Plaintiff’s evidence showing that she was trying to fulfill the duties for the Librarian and Librarian Aide positions, Plaintiff’s bald assertions that she worked between five and ten hours of overtime since April of 2008, in light of her near complete failure to log the time she worked overtime, are insufficient to create a genuine issue of fact.” (Jackson at pages 32-33). Since no genuine issue of fact could be stated, the court granted the Defendants motion for summary judgment effectively dismissing the employee’s wage complaint.

Likewise, in a case that is a little closer to home, White v. Baptist Memorial Healthcare Corp, the Sixth Circuit Court of Appeals held that an when an employee failed to follow the employer’s written policy for reporting when she worked through her lunch break, she could not later recover for those lunch breaks under the FLSA:

“Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process. When the employee fails to follow reasonable time reporting procedures[,] she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA.

Each time White followed Baptist’s procedures for being compensated for interrupted meal breaks or for payroll errors she was compensated. But now White states she decided not to follow Baptist’s procedures for being compensated for interrupted meal breaks and argues that Baptist violated the FLSA for not compensating her for interrupted meal breaks. White occasionally told her supervisors that she was not getting her meal breaks. But she never told her supervisors that she was not being compensated for missing her meal breaks. Accordingly, there is no way Baptist should have known she was not being compensated for missing her meal breaks. Therefore, her claims fail.”

However, the Court did go on to explain that a claim for unpaid work can still go forward if there is evidence that (1) the employer prevented the employee from reporting the time, or (2) the employer was otherwise notified that the employee was failing to report work time. Likewise, as the Northern District Court of Ohio recently held in Roby v. The Lincoln Electric Company, evidence that an employer failed to tell its employees about a time reporting policy and failed to enforce such a policy meant that a jury would have to decide whether the employer had notice of “off the clock work” through the employee’s lunch break:

“Lincoln has provided evidence of written policies requiring employees to take a twenty minute meal break, and prohibiting them from working during this time. They have also cited testimony indicating that at least some piece rate employees did use these breaks to eat a meal, away from their machines. Mr. Roby, has also provided evidence, however, that the written break policies were neither generally followed nor enforced. He also testified that piece rate employees often did not take a twenty minute meal break, that they sometimes ate at their machines so they could continue working during meals, and that management was aware of this practice. Because both sides have presented evidence supporting their positions, there remains a question of material fact, and this Court is precluded from finding in favor of either party on this issue at this stage of the litigation.”

So, what should you do if you work remotely from home during the COVID-19 outbreak, and you are afraid that you won’t be compensated for overtime? Well first, you should call the right attorney to get the top Ohio overtime law attorneys’ advice. Next, you should keep a detailed account of any and all work performed from home and report it to your employer so that no issue of fact can arise.

Once your employer fails to pay you the overtime wages you are entitled to, and you’ve called the experienced overtime law lawyers at The Spitz Law Firm, they will tell you that employers often try to claim that employees who bring these claims for compensation of overtime wages are exempt employees under the FLSA and are not entitled to overtime. However, this counterargument will likely fail if the employee can show that they fall under the categories of non-exempt employees as discussed earlier. Once it has been determined that an employee is a non-exempt employee, even if you work remotely, and the employee has shown that they worked the overtime hours asserted, there is nothing left to bar them from receiving the compensation they deserve for the overtime hours worked. Plus, if the employer cannot prove that it had a good faith belief that it was following the law when it refused to pay you, you will be entitled to double those unpaid wages, i.e, liquidated damages.

The moral of the story is that if you are a non-exempt employee working more than 40 hours from home, you should be keeping detailed records of the work you are doing. If you can prove that this work is being done, there isn’t much left to stop you from receiving the wages you have earned.

At The Spitz Law Firm, our employment lawyers are standing by to take on your Coronavirus related employment claims, including if you are searching “I need a lawyer because I have been wrongfully fired or terminated;” “I have been discriminated against or harassed based on my disability or diagnosis”; or “I was fired for asking about Family Medical Leave Act (FMLA) during the COVID-19 pandemic.” In these uncertain times, if even think that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, Call our office at 866-797-6040 right now. Do not wait. The longer that you wait, the less that your claim may be worth.

Overtime From Your Living Room?

Disclaimer: The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime while working at home during the coronavirus pandemic?”, “Does my job have to pay me for working overtime during the shelter in place order?”, “Not being Paid when I work remotely”, “Can my employer refuse to pay me time and half because business is slow” or “What do I do if I’m being cheated out of overtime pay”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.