Yesterday, two very different employers asked me how the heck they pay employees who are not working. What do they do? Their businesses may suffer considerable losses, or they fear losing their workforce if they do not pay their employees. What are employers’ obligations?

Exempt or Nonexempt, That Is The First Question

This is the first question I ask an employer—are your employees exempt, nonexempt, or is your labor force a mix of both?

Under the Fair Labor Standards Act (FLSA), an “exempt” employee, which usually includes all of your salaried (v. hourly) employees, must be paid for every week in which they do any work. Period. Such employees are “exempt” from the minimum wage and overtime requirements of the FLSA. By the same token, if an exempt employee does not work at all in a given week, an employer need not pay the employee.

By contrast, employers must pay “nonexempt” employees at least minimum wage and overtime for more than 40 hours worked in any given workweek (or more than 8 hours worked in a workday if the employee works in California). These employees must be paid for every minute they work, and an employer need not pay a nonexempt employee when he/she/they is not working.

Ok, So, Now We Are In The Midst of A Declared Pandemic, And I’ve Instructed All of My Employees To Work From Home Or Not Work. What Do I Do?

Have. A. Plan. I cannot stress this enough. Communication is key.

Employers that instruct their nonexempt employees to stay at home should tell them not to do any work or to record every moment of work that they do from home.

But, even if you are texting or emailing with your exempt employees about workplace operations, plans, or management issues, you, employer, must pay that exempt employee in full if said employee is working for even part of that week.

Clear planning is needed here. Employers should create a communication plan advising their employees of their work from home OR not-work-from-home obligations and your expectations.

But What About Paid Sick Leave And/Or Paid Vacation Leave?

If, as an employer, you can afford it, I recommend allowing employees to use any paid sick leave or vacation leave that they have available. As my friend Suzanne Lucas (@EvilHRLady) wrote in this Inc. piece here, you can permit employees to create a negative sick leave balance and borrow from future sick pay accruals. Why do I recommend such generosity? Because you do not want a mass exodus from your workplace.

Be flexible. Or try to be. These are pretty unprecedented circumstances.

As to small employers, your mom and pop shops, your florists, or your gift shops who may have only nonexempt employees, if you cannot afford to pay your employees for any PTO during this shut-down because you’re not making any money yourself, I recommend you treat your employees equally and uniformly. If that means cuts across the board, so be it. The important thing here is to communicate clearly with your staff and treat employees in a uniform and equal manner.

Consider A Furlough.

Two separate organizations asked me this question yesterday. A furlough or layoff may temporarily qualify an employee for a certain amount of weeks of unemployment benefits, depending on the state and circumstances.

This can be a heartbreaking choice for employers who fear that their workforce won’t return once furloughed, but it can give everybody a time out. It eases employers’ financial constraints when coffers are bare (or nearly so) and provides some financial support to strapped employees.

Employers, I Feel You.

Check your Employee Handbooks. If you can, be flexible with your leave policies, do so, communicate with your employees, and get a plan in place.

Questions I received on Wednesday dealt with temperature taking, and yesterday’s questions concerned paying employees. See our client alert from earlier in the week, where I answer questions relating to requiring masks, ADA concerns, OSHA issues like deep cleaning, travel, or sending employees home. Missed it? It’s a 12-point Q&A, which you can find here.