Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC office, was quoted in Law360, in “Pandemic Pay Issues for Wage and Hour Lawyers to Watch,” by Jon Steingart. (Read the full version – subscription required.)

Following is an excerpt:

Six months into the pandemic, wage and hour issues such as paying employees for commuting and for pre-shift safety protocols and the uncertainty of carveouts have emerged as top concerns for employment lawyers.

A lot of the issues that show up are new twists on old rules, according to Paul DeCamp, co-chair of employer-side firm Epstein Becker Green’s national wage-and-hour practice group.

“We’re not really seeing any new rules that are coming about because of COVID, but what we’re seeing is COVID is creating situations that are potentially causing employers to run afoul of rules that have been in place a long time,” DeCamp told Law360.

Here, Law360 examines potential wage and hour pitfalls to watch out for. …

A Reliance on ‘Emergency’ Carveouts

Another provision in the FLSA that’s being tested is the ability for employees who ordinarily are exempt from minimum wage and overtime pay requirements to pitch in on an emergency basis with non-exempt tasks without switching to overtime-eligible, DeCamp said.

As the pandemic drags on, workplace changes that were part of an emergency response may become a new normal, according to DeCamp.

“Is it still an emergency, or is it a new normal, or a new interim period before things return to normal?” DeCamp said.

In light of the uncertainty and in the interest of minimizing the risk of exposure to an unpaid wages lawsuit, he recommends clients analyze whether workers are owed minimum wage and overtime without relying on the FLSA regulations’ emergency provision.

“From a counseling standpoint, I advise clients not to rely on that exception,” DeCamp said.

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