Potential Claims Resulting From COVID-19 Part II: Working Remote Does Not Equal Being On Call 24/7

Businesses that are trying to remain in operation in an era of social distancing and stay at home mandates have seen many employees working from home as a solution. Work-from-home arrangements for businesses that had not previously developed and rolled out well thought-out policies and practices create a number of different concerns that could lead to wage and hour claims.

Scenario:

Lorna is a complaint specialist for Peppercorn Apartments. She works full-time, Monday through Friday from 9:00 a.m. to 5:00 p.m., and makes $20 an hour. When Governor Baker announced the stay at home mandate, Peppercorn’s regional property manager sent the following email to all of the Peppercorn Apartment residents:

Effective tomorrow afternoon at 1:00 p.m., the office will be closed to residents. This is for the safety of the staff and residents. Please remember that we are answering phones Monday through Friday from 9:00 a.m. to 5:00 p.m. and you can email the office at any time. If it is after hours, your email will be responded to the following workday unless it is an emergency. Please do not knock on the door if you see someone inside. The office staff has been instructed to not allow anyone but staff into the office area. 

Lorna and the co-workers who could do so worked from home and went into the office 1-2 times a week to work. Despite the email, residents knocked on the office door and when no one answered, they began calling Peppercorn’s corporate office. Residents also called Lorna as early as 7:00 a.m. and as late as 10:00 p.m., however she ignored the calls because she was “off the clock”. Frustrated with residents calling the corporate office, Lorna’s superior, the property manager of her building, directed her to assist residents whenever and with whatever concerns they have. Lorna began answering all calls and emails whenever they came in regardless of the time and spoke with residents when they knocked on the office door. Lorna wants to know if and how she should be compensated for this extra work she is doing. This week Lorna worked a total of 50 hours.

Under the Massachusetts Overtime Law, generally, employees who work more than 40 hours in any week must be paid overtime. Overtime pay is at least 1.5x the regular rate of pay for each hour worked over 40 hours in a week. Hours worked or “working time” includes 1) all time that a worker must be on duty at the employer’s worksite or other location, 2) any time worked before or after the normal shift to complete the work, and 3) travel time during the workday (but not ordinary commuting time between home and work). What mainly determines if you should get overtime pay is your job type, your job duties, and whether you work more than 40 hours a week. There are several types of jobs that Massachusetts law exempts from overtime (e.g. agricultural workers, custodial staff, hotel workers, etc.). If you are not exempted, you should get overtime if you work more than 40 hours a week, even if you are paid a salary.

Here, Lorna works a full-time job, every week she puts in 40 hours as a complaint specialist for Peppercorn Apartments. She works at her assigned Peppercorn property 1-2 days a week and spends the remaining week working remotely.  Lorna recently worked an extra 10 hours because she was instructed to help the residents whenever, therefore she was completing work before and after her normal shift hours. According to the law Lorna is not an exempt employee so she is entitled to overtime pay. See below for Lorna’s overtime calculation.

Lorna is entitled to an additional $300 in her next paycheck. If Peppercorn Apartments fails to pay her the overtime pay, she can file a wage complaint with the Office of the Attorney General and hire an attorney to sue Peppercorn Apartments. In court, Lorna will  have a right to the overtime she was denied, “treble damages” (3x the amount of actual damages), and reasonable attorneys’ fees and costs. By hiring an attorney Lorna can seek protection under the federal overtime law as well. 

If you are in a situation similar to Lorna, or you are or were in a situation where your paycheck was shorted when it shouldn't have been, or even if you are not sure - reach out to Phillips & Garcia today (508.998.0800 or use the contact box on our site) so we can advise you on your situation. We are experienced civil litigators who represent workers, consumers and individuals who have been wronged by a corporation or entity. We are not afraid to go to battle for your cause and we want to win. We do not charge any upfront fees to our clients and we only get paid if and when we win your case. 

See Part 3 of Potential Claims Resulting from COVID-19: Taking on GIGS vs. Being an Employee