EMPLOYMENT LAW NEWS

Checklist for Remote Employees

By Kris Janisch
Published Feb. 11, 2020

Checklist for Remote Employees

Creating new processes to remain compliant with this ever-changing landscape will be paramount for large employers whose at-home workforce will likely alter their employment law compliance efforts.

Checklist for Remote Employees

The COVID-19 pandemic has expanded the remote workforce, further complicating compliance issues for employers. And many observers anticipate telework will maintain its prevalence even after the pandemic subsides.

This situation has prompted many organizations to rethink their approach to employment law. Creating new processes to remain compliant with this ever-changing landscape will be paramount for large employers whose at-home workforce will likely alter their employment law compliance efforts.

To help employers prepare for the potential of permanently expanded telework, here is a checklist for remote employees.

Labor Law Postings

A fundamental backbone of compliance is labor law postings. But what are employers to do when employees aren’t coming into the office?

Many businesses have turned to their intranet to provide the appropriate labor law postings.

As the coronavirus sparked a wave of newly remote employees, the U.S. Department of Labor (DOL) at the end of 2020 issued a bulletin about whether digital labor law postings are compliant. Of course, the “post and keep posted” aspect of these notices becomes more difficult when trying to relay rights to workers at home.

According to the DOL, there are certain circumstances under which electronic postings will suffice, including:

  • Employees must have easy access to the digital posting
  • Employers must regularly communicate with employees electronically
  • Employees must be able to readily determine which postings apply to them
  • Employers must put them in a conspicuous place, albeit electronically

The first line of defense against worker issues is labor law postings. Checking to ensure compliance should be a high priority for employers.

Company Location vs Worker Location

Many employment laws in recent years — notably those dealing with minimum wage and paid leave — include a stipulation about employees working a certain number of hours in a jurisdiction to qualify.

For example, say a company is headquartered in a city with a paid sick leave law. Qualifying employees must work at least 80 hours a year in that city.

But if the employee works remotely in a nearby suburb and did not reach that 80-hour threshold, the employer would arguably not have to apply paid sick leave benefits for that employee.

Still, most workers would have reached 80 hours of work in the city before the pandemic in the spring of 2020 forced employees to work from home. Yet new hires since then may have entirely worked remotely. And should a company decide to move forward with a larger at-home employee base, paid leave processes may have to be re-examined.

Check the paid leave laws where you have locations to determine how they function in the event employees are working from home.

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Tracking Hours

Though most employees who work from home are salaried, the sheer number of teleworkers prompted the DOL to issue guidance for tracking hours of remote employees.

The guidance reminds employers that all hours worked, even those “not requested but suffered or permitted,” must be paid.

In remote work environments, these hours become more difficult to track. The DOL says it is the employers responsibility to know about unscheduled hours through “reasonable diligence.”

To avoid potential problems, employers are urged to create reporting procedures for unscheduled time. This way, companies will not have to go to “impractical lengths” to investigate unreported hours.

The DOL further reminded companies to not discourage accurate work time. Employees cannot waive their right to compensation under the Fair Labor Standards Act.

However, employers should make sure hourly workers only do the work the company requests. Should an employee complete work that the company did not want done and had no reason to know about, the employer may not have to pay for those hours.

Lastly, guidance is not limited to the pandemic and applies to any telework situation.

Check whether you have remote hourly employees and establish standards and expectations for work.

Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) applies to employers with 50 or more workers in 75-mile radius.

Employers should make sure that eligible remote employees are permitted to take any required leave under FMLA and applicable state law.

Some employers may think that remote employees are not eligible if they work from home that is not within a 75-mile radius. This is incorrect. The employee’s residence is not a “worksite” – the worksite is still the office where the employee reports and employees working from home may remain eligible for FMLA.

Other Considerations

Other items for employers to consider with their remote workforce include:

  • Determining who gets to work from home. Employers should have a nondiscriminatory policy in place to determine which workers can work from home.
  • Work equipment. Some states require companies to provide equipment needed or reimburse them for expenses. Americans with Disabilities Act accommodations should also be examined.
  • Hiring documentation. I-9 verification can be done remotely under a temporary provision from the Department of Homeland Security. But that policy is set to expire at the end of March. Employers should have a plan in place beyond that date.
  • Worker morale. The pandemic has isolated many employees. Employers may want to offer resources or develop plans for workers to interact in some fashion from their homes.

Conclusion

A Pew Research Center survey found that 54 percent of employees who work from home would want to continue to do so after the pandemic subsides. Employers will have to evaluate their own needs to determine the composition of at-home and in-office workers.

Regardless, compliance issues with a remoted or semi-remote workforce will continue to be a challenge for employers. Staying on top of employment law, monitoring guidance from federal agencies and ensuring work continues apace will be part of the compliance puzzle long after COVID-19.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.

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