Sunday Feb 05, 2023

Welcome to the Age of Bleisure: Employment Risks and Implications From the Pandemic-Related Rise in Remote Work – JD Supra


The pandemic altered the way many people live and work. As millions of workers were sent home to work remotely, employers grappled with a myriad of workplace issues that raised questions not addressed by existing labor and employment laws, and the lines between work time and leisure time became blurred. Although the term “bleisure” stemmed from the travel industry and international freelancers who lived and worked anywhere, human resources professionals use it to describe the blurring lines between where people work and where they do non-work activities, including their homes, a beach, a café, a resort, etc. 

Now, even with businesses attempting to return to a sense of normalcy and get staff back into the physical workplace, there are several issues both companies and employees must consider when determining whether partial or complete remote work will become the new normal for some employees.

A brief history of remote work

The idea of remote work, or working from home, isn’t a new one and has been around for decades – albeit not something that everyone was allowed to take advantage of. 

During the fuel shortages of the early 1970’s it was known as telecommuting. That concept evolved into flex work arrangements designed to recruit and retain working parents. Prior to the pandemic, there was also a trend of white-collar gig economy workers taking freelance and consulting jobs that allowed them to work from anywhere in the world. However, only a small percentage of employers had a hybrid or flex-time workforce.

Everything changed in 2020 when the SARS-CoV-2 virus and COVID-19 arrived. The pandemic and resulting lockdowns meant most white-collar workers went remote, including many hourly employees who would never have been eligible to work from home before the pandemic. As lockdowns have eased, some companies have chosen to stay 100% remote, others have gone to a hybrid workplace, while some have demanded that their employees return to the workplace full time. Regardless, COVID-19 has altered the way many of us work, and with those changes come more opportunities for conflict and potential legal problems. 

Wage and hour issues for hourly, non-exempt employees 

When it comes to working from home, whether a business is 100% remote or has a hybrid structure in place, there are issues with timekeeping, compensation, and what constitutes working versus what does not, especially for employees paid on an hourly basis.

Historically, non-exempt employees working in the office must punch in via a time-clock or enter their time on a timesheet. They also tend to have a set schedule and, pursuant to the Fair Labor Standards Act, must be paid time and a half for any time over 40 hours per week they work. But what happens with an hourly employee working from home? With remote work, there is a potential for abuse by an employee who stays clocked in when taking lengthy breaks or streaming Netflix, and the employer has no real way to monitor the employee’s actual time devoted to work.

Remote work, conversely, also presents the potential for abuse by the employer.  If a supervisor expects employees to be available and to answer emails, texts and messages outside of their normal shift, that’s compensable time that a non-exempt employee is required by law to be paid for by their employer.  Employers who claim to not allow overtime work, and who instruct employees to not clock more than 40 hours a week, are in violation of the Fair Labor Standards Act (FLSA) if remote work stretches …….


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