Legal Compliance in the Age of Remote Work
#evolve Magazine
January 22, 2021

It is undeniable — COVID-19 has changed the workplace in significant and lasting ways.

Last spring, the sudden shift to remote work was expected to be a temporary measure to stem the spread of the virus. It didn’t take long, however, for employers to realize that remote work provided them with a significant cost savings associated with a smaller real estate footprint and surprisingly increased employee productivity.

Additionally, abandoning the brick-and-mortar office building allows employers to expand the geographical reach of their recruiting strategies to tap into a more diverse talent pool. As a result, many employers are considering allowing employees who can work remotely to do so permanently. While the business benefits of a primarily remote workforce are undeniable, employers need to take care to avoid legal pitfalls.

Employers have the benefit of having operated for nearly a year with a primarily remote workforce. Before launching into a fully remote workplace, employers should take advantage of the lessons learned during this time. The following are recommendations that employers should consider as they move to a more permanent remote workforce.

Setting Clear Expectations

Working remotely on a temporary basis during a pandemic is very different than working remotely permanently. As a result, employers should review and update their employee handbook and job descriptions as necessary to reflect the changed work environment. In addition, the handbook and other policies should be revised to clarify expectations for a remote workforce, such as:

  • performance expectations,
  • time and attendance requirements,
  • expectations for home offices,
  • health and safety requirements,
  • process for requesting leave,
  • availability during working hours, unless on approved leave,
  • data security protocols,
  • appropriate storage and disposal of hard- copy documents, and
  • security of company-issued devices and equipment.

Required Workplace Notices

Employers are required, pursuant to state and federal law, to post specific notices related to harassment and discrimination in the workplace, protected family leave, wage and hour, and health and safety standards, among others. These notices must be available to employees working remotely. This can be accomplished by making the posters available on the company’s intranet or by email.

Workplace Safety at Home

Employers are not relieved of their legal obligation to provide a safe workplace when the workplace is an employee’s home. Employers are not required to inspect employees’ homes to ensure they comply with health and safety standards imposed by the Occupational Safety and Health Act of 1970 (OSHA).

However, it is a best practice to provide employees with a checklist for maintaining a safe workspace in their home. Employers may ask employees to certify, in writing, that their home office complies with the safety requirements set forth in the checklist. Finally, workers’ compensation laws apply to workplace injuries that occur while the employee is working at home.

Wage & Hour Compliance

The Fair Labor Standards Act of 1938 (FLSA) requires employers to pay employees for all hours worked. Nonexempt employees are entitled to overtime pay for hours worked in excess of 40 hours in a given week. Compliance with the FLSA necessitates accurate recordkeeping of hours worked. Employers must require nonexempt employees to accurately track and report their working time daily and they must receive written authorization from their supervisor before working overtime.

Employers should also continue to enforce applicable meal and break requirements for nonexempt employees when they are working from home, including the recording of unpaid meal breaks. As a best practice, periodically remind employees that they are entitled to and must take meal and rest breaks when working from home.

Movement to a primarily or fully remote workforce may necessitate reallocating job duties. Employers should take care when assigning nonexempt job duties to exempt employees. The reallocation of duties may cause an exempt employee to no longer be primarily performing job duties that qualify for the exemption. As a result, the employer could face claims of misclassification, including liability for unpaid overtime pay.

Reasonable Accommodations for Individuals with Disabilities

Employers’ obligation to provide reasonable accommodations pursuant to the Americans with Disabilities Act of 1990 extends to employees with disabilities who work remotely.

FMLA Eligibility

The protections of the Family and Medical Leave Act of 1993 (FMLA) extend to eligible remote employees. The FMLA regulations state that an eligible employee must be “employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite.”

An employee’s worksite is defined as “the office to which the employee reports and from which assignments are made.” Therefore, if 50 or more employees are within 75 miles of their employer’s worksite, they are eligible for FMLA leave.

Impact of Remote Work on Diversity and Inclusion

It takes a skilled manager to effectively manage a 100% remote workforce. Depending on company culture and where each company is on its D&I journey, full remote work can negatively impact minority and female workers and individuals with disabilities. Unless you have a strong culture of inclusion and managers who are skilled at managing a remote workforce, these employee groups are at risk of falling through the cracks.

  • Encourage managers to take note of who is not contributing on video calls and make a concerted effort to bring them into the discussion.
  • Require managers to conduct periodic one-on-one check-in meetings with everyone on their team.
  • Develop a protocol for continuing formal and informal mentoring relationships remotely.
  • Ensure managers receive training on implicit bias, work-life balance and inclusion.

Impact of a Fully Remote Workforce on Pay Equity

One of the motivations behind moving to a primarily remote workforce is cost savings. Those savings can come from adjusting salaries. Employers have three options for setting pay for a remote workforce to be competitive with (1) geographic area where employees live; (2) the location of the office to which they report; or (3) the national average.

Given the options, the impact of the shift to remote work on pay equity is not clear. The change can be the key to closing the gap or it can undo all the progress employers have made toward shrinking the differential in their workforce.

Employers should proceed with caution when considering whether and how to revise their compensation program for a remote workforce. The focus on pay equity may have been temporarily over- shadowed by the pandemic, but there is no indication that shareholders, enforcement agencies and plaintiffs’ attorneys have moved on. 

“Movement to a primarily or fully remote workforce may necessitate reallocating job duties. Employers should take care when assigning nonexempt job duties to exempt employees.”
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