In the old economy (three weeks ago), remote work was a growing but still limited part of the workforce. Only around 5.3% of American employees worked primarily from home in 2018.
Within the past three weeks, companies have moved at Mach-2 speed to restructure workplaces, with the emphasis on remote work. The major tech employers (Facebook, Google, Twitter) were the high-profile early adapters in the first days of March, and other employers, in a range of sectors outside of tech, have followed.
It’s too early to say whether the current spike will lead to greater remote work following COVID-19. Many of the new remote workers say they miss the creativity, ideas, and collaboration of the congregate workplace, as well as the social connections. At the same time, they may celebrate the absence of a time-consuming and draining commute, or travel-required meetings outside the office. We’ll see over the next few years.
In the short term, though, the existing remote work implementers are continuing, and more firms are joining each day. As they do so, they need to be aware of the best practices of remote work, operational, and legal. Remote work does not exempt employers and employees from the safety, wage and hour, and other employment requirements of the regular workplace.
Let’s bring in Jonathan Segal, with expertise in the laws governing remote work. Segal is a partner in the Employment Group of Duane Morris LLP, who has worked on crisis management in general and public health crises for more than 20 years. He describes his practice as “maximizing compliance and minimizing legal risk, always keeping an eye on culture and employee relationships.”
1. Payment of employees who work remotely: In employment law, the main distinction is made in payment obligations between exempt and nonexempt workers (excluding workers covered by a labor contract or employment agreement). The same distinction applies to remote workers. Exempt employees need to be paid in full for any week in which they perform any work remotely. Nonexempt employees generally are entitled to pay only for time actually worked remotely, whether a full or a partial day. Segal notes that there are exceptions (some nonexempt foreign nationals, nonexempt workers working under a fluctuating workweek plan), but in the main, the payment rule applies.
Segal advises that employers in establishing a remote work plan set out guidance to nonexempt workers in setting a schedule and tracking hours. On the one side, setting a schedule helps employers to avoid overtime claims that might arise from unstructured remote work. On the other side, it assures nonexempt workers that they are not expected to be on call at all times.
Tracking of hours can be done through several means, including log-in and log-out processes. Can someone log in and then go to the park for 4 hours? Yes, Segal notes. But tracking of hours, like so much of the employment relation, rests on trust. “I’ve had employers who try to avoid misuse of remote time by suggesting that they are suspicious of employees working remotely. That’s exactly the wrong way to set up a remote work plan. Instead, the employer will want to indicate the importance of tracking time, but also that they trust the employee, to be honest,” explains Segal.
2. A safe and secure work environment: Employers have obligations under federal and state safety laws to provide a safe and secure work environment for employees. This extends to remote work. The remote workspace is treated as an extension to the regular workforce for safety requirements.
Segal notes that it is neither feasible nor desirable for employers to go to the homes of their employees and inspect them. What they can do to avoid unexpected safety claims is to address safety in their remote work plan, and ensure employees are aware of safety requirements. Employers should also clearly convey that any injuries during worktime should be reported to the company so that it can file a claim with the company’s workers’ compensation carrier.
3. Control of additional costs incurred by workers for working remotely: Employers also will want to avoid unexpected claims down the line from workers at home who purchase additional equipment (higher-grade printers, additional desk) to work at home at the employer’s direction. Segal advises that employers should clarify at the start that any additional equipment or services charges (or any above a certain price) need to be approved by a supervisor.
4. Control of a fair “reasonable accommodation” policy: Like other employment laws, the employment provisions of the Americans with Disabilities Act (ADA), while bringing benefits to employers and employees, have been subject to misuse. An employer does not want remote work today to establish a precedent that it is a presumptively reasonable accommodation in the future. Segal suggests something as simple as “during this pandemic, we will allow employees to work from home even where this would not be permitted in the ordinary course.” Segal refers to this as a “simple placeholder” in case of a future claim.
5. Maintaining information security: Segal notes that remote work can give rise to information security breaches, however inadvertent and even with family members. Segal recommends several actions, the main one being “require that employees log in and out when they are not using their computer. If an employee leaves the computer on, a family member with no bad intent may see what he or she should not or might send a message that causes a data breach with the consequent notification requirements.”
Underlying all of these guidelines are Segal’s ideas, developed over the past 20 years, on the central role of employer-employee trust. There are no fail-proof measures in the regular workplace to prevent misuse of time, and this is even more so with remote work. An employer needs to set structures addressing the issues above, but not in a tone of suspicion or anger. Segal emphasizes, “In a time of crisis, we need to focus on the vast majority of employees who do the right thing, and give ourselves the time and perspective to focus on the bigger-picture business continuity planning.”