Labor law posters for remote employees? It’s only one of many compliance concerns as a good portion of the nation’s workforce continues to work from home.
For a time, momentum behind employees returning to the workplace was building. Employers created safety protocols, offices began filling up, and hybrid work models became the norm.
But the continued headache of the COVID-19 pandemic, coupled with more employees wanting flexibility in their work, slowed the push to get workers back in the office. And with that comes employment law compliance issues.
As employers head into 2022, it’s vital to have policies and procedures in place to comply with the challenges of managing a remote workforce. Below are several items to consider regarding remote employees and compliance.
Labor Law Posters for Remote Employees
Labor law posters must be displayed in a conspicuous area… you know the drill.
But what happens when your employees aren’t onsite? Many employers have turned to their intranet to provide the required labor law postings.
At the end of 2020, the U.S. Department of Labor (DOL) issued a bulletin about whether digital labor law postings are compliant. According to the DOL, there are certain circumstances under which electronic postings are appropriate, 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
While there may be no physical break room or common area for labor law postings, employers should still ensure their remote workers access to them.
Minimum Wage, Tracking Hours
Many employment laws in recent years — including minimum wage — stipulate that employees must work a certain number of hours in a jurisdiction to qualify.
Say you have a location in Berkeley, Calif. Under the city’s minimum wage law, qualifying employees must perform at least two hours of work in the city in a calendar week. But if an employee has been working from home the entire time, they may not qualify for the city’s minimum wage, but the wage rate where they live.
Of course, many employees who work from home aren’t minimum wage workers. Still, the number of employees working remotely has prompted the DOL to issue guidance for tracking hours of remote employees.
Federal officials reminded employers that all hours worked, even those “not requested but suffered or permitted,” must be paid.
Also, tracking hours becomes difficult when employees are working from home. The DOL says it is the employer’s responsibility to know about unscheduled hours through “reasonable diligence.”
To avoid potential problems, employers are urged to create reporting procedures for unscheduled time. By doing so, employers won’t have to go to “impractical lengths” to investigate unreported hours.
Lastly, the DOL further reminded companies to not discourage accurate reporting of work time. Employees cannot waive their right to compensation under the Fair Labor Standards Act.
Minimum Wage Management. Simplified.
Many employees have taken advantage of remote work to, well, work wherever they want, which can bring compliance questions related to the Family and Medical Leave Act (FMLA).
The FMLA applies to employers with 50 or more workers in 75-mile radius. What happens when your employees are farther than 75 miles away?
Some employers may think that remote employees are not eligible if they work from home and it’s 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.
Employers should make sure that eligible remote employees are permitted to take any required leave under FMLA and applicable state law.
Paid Leave Laws
Like minimum wage, paid leave laws also often include a stipulation about employees working a certain number of hours in a jurisdiction to qualify.
For example, let’s say a business 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 could arguably not have to apply paid sick leave benefits for that employee.
Many new hires over the past couple of years have never even visited the office. Employers should check the paid leave laws where they have locations to determine how they function in the event employees are solely working from home.
Paid Leave Management. Simplified.
Business Expense Reimbursement
Employees who work from home still need office supplies. But who picks up the tab?
Under the Fair Labor Standards Act (FLSA), employers are not required to reimburse employees working remotely for business expenses they incur while working from home or elsewhere.
However, nine states and the nation’s capital have passed laws that require employers to reimburse workers for some types of expenses.
- New Hampshire
- North Dakota
- South Dakota
- Washington, D.C.
Of course, these laws vary widely. In California, for example, employers are required to reimburse employees for “all necessary expenditures or losses” as a result of the employee performing job duties.
But in Washington, D.C., the law requires employers to pay the cost of purchasing and maintaining any tools the employer requires to perform the employer’s business. The expense must be “required” in order to be reimbursable. If an employee’s remote work is entirely voluntary, then an employer would not generally be required to reimburse expenses for an employee to work remotely.
Find more information on business expense reimbursements for remote workers in a previous Employment Law News post.
It appears that, regardless of the status of the COVID-19 pandemic, employers will continue to allow employees to work from home.
A recent survey cited on LinkedIn found that productivity among U.S. employees doubled ruing the pandemic. And while management often would prefer to see employees in the workplace, it sparked a larger discussion about company culture, compensation and more.
With hybrid or totally remote work the new normal, employers should evaluate the employment law nuances involved to remain compliant.