It’s a whole new world for employers now that we are into our third year of the COVID-19 pandemic. Employees have become accustomed to working remotely and do not necessarily want to return to the office, even with the availability of vaccinations and the lift of workplace mask requirements. As technology advances and workplace environments continue to change, employers must learn to quickly adapt their workplace practices and policies to align with those changes.
Many companies have reevaluated their workplace structures and decided to allow hybrid or even 100% remote work as an ongoing option for employees.
Although remote or hybrid work offerings are a great workforce attraction and retention tool, these new work arrangements come with great legal risk if not implemented appropriately.
Below are some of the predominant legal issues that arise in employing remote non-exempt (hourly) workers and guidance for employers to avoid common pitfalls.
Work-Time Must Be Managed and Accurately Accounted For
California employees are entitled to compensation for all time they are subject to employer control or permitted to work, whether or not required to work. The tricky part for employing remote workers, of course, is making sure you are accurately paying them for all hours worked, so that you are not later surprised by an off-the-clock, overtime, or other wage and hour claim. Indeed, working at home should not be a license for the hourly employee to work at their leisure. Employers should carefully manage remote work by:
- Establishing a written remote workplace policy setting clear expectations and rules for employees.
- Ensuring employees are maintaining accurate time-keeping data.
- Periodically auditing time records to prevent employees from working around their scheduled time (such as unauthorized late-night work or intermittent work through the day) or not taking timely 30-minute meal periods.
- Providing warnings/reprimands for violations of the same, which may result in the loss of the privilege of working remotely.
Watch for Expense Reimbursements
California law also requires employers to indemnify employees for necessary expenditures that employees incur as a consequence of performing their job duties. For remote workers, this means that whatever it takes for them to perform their jobs – computer equipment, furniture, office supplies, cellular data and internet service expenses, and even heating and air-conditioning – must be paid for in-part or reimbursed by the employer as a “business expense.” This is true even if an employee voluntarily chooses to work remotely.
Travel expenses are also reimbursable when the travel is directed by the employer or essential to the job. Although an employee’s travel to and from work (normal commute) is generally not compensable, remote employees must be paid at their regular rate of pay for their time spent traveling to locations further than their regular place of work, just as they also must be reimbursed for their mileage for such travel.
What About Interstate Remote Employees?
If you have an employee working remotely out-of-state, be sure to apply the correct wage and hour laws. The California Supreme Court has opined that California’s wage and hour protections, as applied to remote workers outside of California, vary on a statute-by-statute basis. The applicable law may be the state of the employee’s principal place of work.
Managing remote, non-exempt employees can be a significant challenge since they are generally not within an employer’s daily and physical view, but still remain within the employer’s control as they perform their job duties. Therefore, when offering remote opportunities to employees, employers must be sure to provide clear expectations, as set forth above, and maintain adequate policies and practices to ensure the employee is adhering to company policies at all times.