Legal Considerations for Remote Work Policy

By: Sandro D. DiMercurio

The COVID-19 pandemic has caused many employers to implement a Remote Work policy within their respective organizations. Many states issued stay-at-home orders which caused employers to transition, on the fly, from a traditional office environment to a home space environment. As social distancing orders were lifted, many employees still requested to work from home. In fact, according to a poll from SHRM, 52% of “U.S. workers would choose to permanently work from home on a full-time basis if given the option.”

The COVID-19 pandemic may have forever changed what was traditionally known as the “workplace”, and it seems that working remotely will be part of the norm for the foreseeable future. Employers are facing unprecedented challenges with such significant increases in employees working from home. However, both employers and employees can benefit from remote work if guidelines and policies are well defined within the organization.  Employers should implement new Remote Work policies. Below are some legal and practical considerations when contemplating such types of policies:

1. Wage and Hour:
   • Employers should implement measures to accurately track how many hours each employee is working, especially for non-exempt employees.
     • The FLSA requires employers to pay non-exempt workers at least one-and-a-half times their regular rate of pay for all hours worked in excess of 40 in a single work-week.
     • It may be more difficult for employers to manage overtime obligations, control off-the clock work, rest or meal breaks, and to even identify compensable working time.
     • Employees “working time” needs to be clearly defined.
   • Employers should be aware of the minimum wage laws in each state that it has employees working remotely.
     • Generally, the law of the state where the employee is working remotely from, and not the state where the actual business is located, determines the minimum wage.

2. Privacy:
   • Employers should ensure that employees’ home networks are secure and password protected.
     • Employees have access to a variety of confidential information related to their employer and their employer’s clients and/or customers.
       • Financial data, intellectual property, proprietary information, addresses, confidential communications, etc.
     • Consistently remind all employees of the company confidentiality policy.
     • Employers should consider training employees on privacy and security.
     • Mandating that any scams, malware, and/or suspicious be promptly reported to the IT Department.

3. Managing Productivity of Employees:
   • Implement technology to track each employees productivity.
     • Spyware, keylogging, etc.
   • Disclose to all employees that you will be monitoring them.
   • Monitor each employee equally in order to avoid any claims of discrimination.
   • Keep in mind not to violate any privacy laws, social media laws, and any health related laws (such as HIPAA or the ADA).

4. Remote Work Injuries:
   • Employers may be liable for injuries suffered at home by its employees.
     • Employers should check with their insurance company regarding coverage.
   • Employers should require employees to define their home workspace and provide them with a safety checklist.
   • Employers might consider having employees sign an authorization prior to working remotely.
   • Employees should be required to immediately report any injury.

5. Preventing Virtual Harassment:
   • Remember that your company’s anti-harassment policy applies to employees working remotely.
     • A hostile work environment can still exist virtually.
   • Employers should revise their current policies to cover conduct communicated through virtual mediums.
   • Train supervisors and/or managers to look for signs of virtual harassment.
   • Ensure that all virtual harassment incidents are investigated promptly.