The coronavirus pandemic has forced many companies to change the way they function. One of the biggest adjustments made by many businesses this year, including some self-storage operations, is to allow employees to work from home. In a lot of cases, they’re telecommuting for the first time. Not only does this create new logistical challenges, employers may be subject to legal claims that arise from these work conditions.
Let’s examine two of the key issues connected to having staff work remotely and what self-storage employers should do to mitigate risk.
Wage and Hour Claims
One of the biggest potential issues stems from employees who are classified as non-exempt under the Fair Labor Standards Act (FLSA). Employers suddenly have staff working remotely who are paid hourly and entitled to overtime pay. They must track the hours worked! If adequate steps aren’t taken to record time and pay employees accurately, it could give rise to wage-and-hour claims.
With so many people moving to remote work, the Department of Labor (DOL) recently issued new guidance for tracking hours. At its most basic level, the FLSA requires employers to pay non-exempt workers for all hours worked (including overtime). This includes work not requested but suffered or permitted, no matter where it was performed. Moreover, a business operator is required to pay for all work performed that it knows about, even if it didn’t ask an employee to do said work or didn’t want it done.
Under the FLSA, if an employer doesn’t want certain work performed, it is expected to make every effort to prevent it. It’s the company’s responsibility to stop employees from doing unwanted labor. Simply having a rule against performing such work isn’t enough.
Per the DOL guidance, an employer must compensate staff for any work it knows or has reason to believe has been performed. The company may have actual or constructive knowledge of such work. Actual knowledge is fairly easy to pinpoint. It’s relates to work performed during regular work hours or tasks the employer knows are being done. Constructive knowledge is trickier. It relates to whether the employer has reason to believe work is being performed or should have been aware about such work through reasonable diligence.
One way an employer can show diligence in determining time worked and mitigate wage and hour risk is to ensure employees are accurately recording all hours. Set up a process and system that allows staff to enter time worked and mandatory breaks. This might be a computer- or even a phone-based system.
Here are a couple of important things to understand about time tracking:
- Employers aren’t required to consult non-payroll records, such as those showing when staff accessed work-issued electronic devices, to determine accurate time worked.
- Employers can’t discourage or hinder accurate time reporting by employees, even indirectly. However, it’s an employee’s responsibility to report scheduled or unscheduled hours worked. If he fails to do so, the employer generally isn’t required to investigate further.
Consider establishing work-from-home policies for your self-storage staff that outline your company’s timekeeping requirements, expected hours of work, break times, and procedures for communicating issues. You must then ensure these policies are enforced and followed. By doing so, you’ll be better prepared to defend any wage and hours claims.
Workers’ Compensation Claims
Though it may sound strange, self-storage employers also have to consider potential workers’ compensation claims that could arise from incidents occurring in an employee’s home office. You must provide a safe work environment, regardless of where staff are located. Courts have held that an employer’s lack of control over an employee’s work-from-home setup is irrelevant when it comes to workers’ comp. Tripping over cords, slipping on papers, or lifting computer equipment could lead to claims.
Consequently, self-storage companies should establish a safety policy for team members who work from home. You might set guidelines and requirements for a home office. You might mandate that employees provide documentation, even by video, of their home-office setup. You could also require personnel to provide proof of current homeowner’s or renter’s insurance.
These are unprecedented times for most self-storage owners. Adjusting to new employment regulations is an important component to protecting your company and mitigating business risk.
Ashley Oblinger is an attorney in the Atlanta law firm of Weissmann Zucker Euster Morochnik & Garber, P.C., where he specializes in business and self-storage law, advising operators nationwide on all legal matters, including lease preparation, lien enforcement, tenant issues, tenant-claims defense, and employment policies. To reach him, call 404.760.7434; email [email protected].