Masks may be coming off, but many employees are not returning to the office. Employers and employees alike have realized the benefits of remote work arrangements. Employees have enjoyed the flexibility that a remote work arrangement provides and appreciated the time and money that they saved by eliminating their daily commute. Employers have recognized that remote work arrangements provide them with a larger pool of talent because they are no longer restricted by the geographic location of prospective employees. Notwithstanding these benefits, remote work arrangements can create legal challenges. Employers can navigate these legal risks by considering the following “Dos” and “Don’ts.”
- DO partner with legal counsel to ensure that your organization is complying with all federal, state and local employment laws.
Employers must comply with the wage and hour laws of the state and municipality in which the employee works. An employer must pay employees the federal, state or local minimum wage (whichever is higher) but the required minimum wage rates differ from state to state. For example, the federal minimum wage and the minimum wage required in Pennsylvania is $7.25; Ohio’s minimum wage is $8.80 (for employers with gross receipts of $323,000 or more); and Michigan’s minimum wage is $9.65.
Employers must also navigate the state and federal leave laws. For example, effective March 29, 2019, most employers with employees (including remote workers) in Michigan will be required to provide paid medical leave to employees. While the federal Family Medical Leave Act requires an employee to work for 12 months before becoming eligible for family medical leave and requires only unpaid leave, the Michigan Paid Medical Leave Act applies after an employee works for 90 days and requires paid leave.
- DO avoid common wage and hour pitfalls.
In remote work arrangements, employers do not have the same visibility that they have when an employee is coming into the workplace. Employers should ensure that their non-exempt remote workers are accurately recording their time worked. If non-exempt employees are working “off-the-clock,” the employer could be subject to a wage and hour audit by the United States Department of Labor or a collective or class action seeking lost wages, liquidated damages and mandatory attorneys’ fees.
Employers may be tempted to classify remote workers as “independent contractors,” but doing may also expose the employer to wage and hour liability. The U.S. Department of Labor continues to focus its compliance efforts on independent contractor misclassifications, and these cases are a favorite of the plaintiffs’ bar.
- DO protect company property and confidential proprietary information.
Remote work arrangements may mean that a company’s trade secrets and confidential proprietary information reside in remote locations. Employees should ensure that employees are aware of their confidentiality obligations and trained on how to protect the company’s trade secrets and confidential proprietary information.
Employers should be aware of potential cybersecurity risks and should strengthen their email and phishing attack precautions. Employees should also be trained on how to ensure that their Wi-Fi connections are secure.
- DON’T tolerate harassment or cyber-bullying or digital discrimination.
In certain situations, an employer can avoid liability for unlawful harassment by showing that it exercised reasonable care to prevent and promptly correct any harassing behavior. With the rise of remote work arrangements, employers may want to revise their existing discrimination and harassment policies to include cyber-bullying and digital discrimination. These policies should provide procedures and resources for employees to report incidents of cyber-bullying or digital discrimination. Employers should investigate all reports of cyber-bullying and digital discrimination and, when warranted, take appropriate corrective action.
- DON’T ignore employee privacy concerns.
Employers may wish to use monitoring software to manage the productivity of remote workers, but doing so may raise employee privacy concerns and disclose health-related information about employees (of which the employer would not otherwise be privy). Employers should communicate their monitoring policies to employees and get the employees’ consent.
- DON’T engage in unlawful discrimination when determining whether remote work arrangements are appropriate.
Employers should not discriminate against employees when they approve or deny a request for a remote work arrangement. Even when an employer has legitimate business reasons for providing remote work opportunities to some employees and not to others, employees may view the fact that certain employees are treated differently as unlawful discrimination. To protect against even the appearance of discrimination, employers are advised to adopt policies that identify which positions are eligible for remote work opportunities and create processes for requesting, authorizing and terminating remote work arrangements.
You can watch the full interview where Jen Phillips discusses this topic with our local NBC affiliate below:
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