By Lee Cotugno
One side-effect of COVID-19 has been the acceleration of remote working. Whether provided as an accommodation to a disability, or in response to a demand from (among others) Millennial employees, many companies and organizations will need to adapt to this new working environment. This adaptation includes providing for remote working in a way that is done fairly and avoids litigation.
Here are key components of any remote-working environment that should be followed:
1. Decide if you want to allow remote working at all. If so, establish a policy stating the circumstances under which remote working will be allowed, put that policy in writing, and apply it equitably. At a minimum, the remote working policy should state that the employer will comply with all applicable federal, state and local wage and hour and anti-discrimination laws.
2. Review your job descriptions, decide if there are any positions which cannot be done remotely, and clearly state in the job descriptions if that is the case.
3. Track the time that employees work remotely. This is especially important for non-exempt employees (generally those working on an hourly basis) because of the potential to incur unexpected overtime. If you don’t have a time-keeping system that remote workers can access, use time sheets or similar tracking methods and require employees to provide time records on a regular (at least weekly) basis. And make certain that time records are regularly reviewed by management (again, at least weekly) to ensure that unauthorized overtime is not taken and that other wage and hour laws (such as meal and rest breaks) are being taken.
4. Have a written policy that overtime can only be worked if approved in advance in writing (except for emergencies).
5. Ensure that remote workers are working in a safe environment. You still have to comply with federal and state OSHA requirements. As a practical matter, this means finding out where your employees are actually working when remote and obtaining assurances (documented in writing) that their workspaces are safe.
6. Where required, be certain to reimburse employees for expenses they incur in connection with remote working. This can include computer and related equipment, desks and chairs and lighting. State and local laws may require you to reimburse a portion of such costs where employees also use such equipment (including cell phones) for personal matters.
7. Check with your insurance carriers (including workers compensation) to ensure that your employees are covered when working remotely.
8. Comply with applicable state and local laws. Determining which laws are applicable usually is based on the physical location of your remote employees. When employees are working from more than one location, the place where they are principally working likely will be the guiding factor. In almost every instance, determining which laws apply is, as lawyers say, fact intensive, and should be carefully reviewed with counsel. This analysis also will help you determine to which state the wages of employees working remotely have to be reported.
For example, in some states, the physical presence of employees in the jurisdiction may subject either the employer, the employee, or both to tax in the state. For example, the physical presence of an employee may be sufficient nexus to subject an employer to sales and use tax in a state. Additionally, payroll taxes may be impacted by the employee’s physical location. Some states temporarily suspended these rules, but the temporary suspensions are expiring as the country re-opens.
Similarly, the physical presence of an employee can also create “presence” in the state such that the employer must qualify to do business in the state. Additionally, many charitable solicitation laws apply to entities soliciting in the state, so if a remote employee will be handling development matters from his or her home office, charitable registration in the employee’s home state may be appropriate.
To learn more about state-specific resources, see Napa Legal’s Multi-State Compliance Matrix.
9. Finally, talk to employees about the challenges they face by working remotely. Flexibility can be the key in ensuring that remote working is effective both for your employees and your organization.
Lee W. Cotugno obtained his law degree from the University of California at Berkeley in 1977 where he was a Member of the Moot Court Board and graduated summa cum laude from the University of Minnesota in 1973. Prior to joining his present firm, Mr. Cotugno worked for a prominent Los Angeles law firm and litigated a variety of complex business and commercial cases. He has tried numerous jury and court trials and has been lead trial and appellate counsel in unfair competition, banking, labor and real estate actions. A substantial portion of Mr. Cotugno’s current practice is in the area of employment law, representing small to medium sized companies as well as corporate officers, employees and workers who have claims for wrongful termination, discrimination, harassment, and other violations of state and federal civil rights laws. Mr. Cotugno also advises and represents companies that seek to comply with state and federal employment laws in order to avoid litigation.
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