Post COVID-19 - Key areas that seem to be flooding the legal system


Under the Fair Labor Standards Act (FLSA) hourly (non exempt) employees must be paid for  any hours over 40 in a workweek.  The issues seem to be around the new tasks required before they start work or complete work that include the time for health screening, temperature screening, and cleaning of work spaces.  Such time is considered to be compensable, I guess that's the debate in the courts.

Off the Clock Work is an issue as well for those who work from home.  Many are now working remotely and often are working outside of regular work hours.  There is a risk here is employers are not being diligent about tracking ALL time worked and pay for this time including work performed during any unpaid meal or break periods.

Be careful as to how your positions are classified.  Despite the attention that this topic has gotten over the last several years, some still don't understand what truly constitutes exempt and non exempt.  This is the time to focus if you have not done so appropriately in the past.  

The other area that seems to be keeping courts busy are claims that relate to reopening businesses.  There seem to be disability discrimination claims, retaliation claims, whistleblower claims and privacy matters relating to COVID-19 diagnoses.

Finally, the WARN Act.  This requires advance notice to employees in instances of mass layoffs and qualified closings. Mass layoffs due to the devastating effects of the pandemic may lead to class-action suits.  Many employers are seeking exemption from this due to the nature of this unpredictable pandemic but it isn't clear as to how this will go in courts.

So what should you be doing?  Be sure that you have good practices that are solidly in line with the laws and regulations out there.  There are so many new things to consider now on top of other HR issues that are complicated.  Take any actions possible to reduce risk and exposure by reviewing wage and hour practices, record keeping procedures, contracts, handbooks and other policies to ensure they are in compliance.

Seek the help you need!  
Warm regards, Jbm.

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