Home Health & Hospice Week

Tip: Trust but verify what your payroll company tells you.

With the pandemic came altered working conditions — and resulting confusion around compensation requirements under the Fair Labor Standards Act government overtime and other compensation.

In two “lame duck” Department of Labor Wage and Hour Division opinion letters issued Dec. 31, the Trump administration addressed two of these areas, notes attorney Allan Bloom with Proskauer Rose in the firm’s Law and the Workplace blog. The Trump-era WHD issued 15 lame duck opinions overall, with four posted Jan. 19, the day before the transfer of power, the WHD website shows.

In comparison: The Jimmy Carter administration issued a single wage and hour opinion letter following President Reagan’s election in late 1980, the George H.W. Bush and Bill Clinton administrations each issued four lame duck opinion letters, the George W. Bush administration issued a whopping 48 lame duck opinion letters, and the Obama administration issued none, Bloom recounts. (Actually the Obama adminis­tration issued so-called “Administrator’s Interpretations” instead of opinion letters, but it didn’t issue any of those after the 2016 election either, according to Bloom.)

Overall, the Trump Wage and Hour Division issued 80 opinion letters since Jan. 20, 2017, it noted in a Jan. 19 release.

In letter FLSA2020-20, WHD Administrator Cheryl Stanton considers overtime compensation for live-in home care workers. “Demand for such live-in or extended shift care services has increased during the COVID-19 pandemic because clients — most of whom are vulnerable to COVID-19 for age and health related reasons — prefer that their caregivers remain in their home to reduce contagion risks,” the letter notes.

In the offered scenario, a home care company considers all hours in the home as compensable except for “bonafide meal and sleep periods” of up to eight hours per day. The company pays workers an hourly rate for 40 hours and then time-and-a-half for hours worked over 40.

Further, if a worker’s meal and sleep time gets interrupted, that time is counted as hours worked. If the worker doesn’t get five hours of sleep, that whole sleep time is counted as hours worked. The company pays workers based on the expected overtime. If unanticipated time gets added, the company pays workers a supplementary time-and-a-half for the unexpected hours.

WHD puts its stamp of approval on this payment methodology, noting it’s “consistent with the FLSA’s overtime provisions.”

In another letter, FLSA2020-19, WHD addresses another scenario much more common in the pandemic — how to treat travel when employees work part time at home and part time in the office, with personal time in between those blocks of time. Travel time is not compensable in such a scenario because it counts as normal commuting time, the worker is off duty, or the travel is not between worksites, WHD rules. The continuous workday doctrine also doesn’t apply, Administrator Stanton says.

This opinion “highlights the challenges that employers can confront in determining how much time a non-exempt employee who telecommutes is working during the day when there are interruptions for personal pursuits,” say attorneys Michael Stevens and Henry Morris Jr. with law firm Arent Fox.