In the spring of 2020, many employers were forced on an emergency basis into remote work arrangements with their employees. Now, more than a year later, the pandemic has calmed down and employers are making decisions regarding employees who wish to continue with hybrid or remote work relationships. Employers should consider these key issues when making decisions on how to proceed.
Eligibility. Allowing remote or hybrid work arrangements is not an “all or nothing” decision. Some positions are amenable to remote work, while others are not. Some employees are very productive working remotely, while others are not. Employers should carefully examine the duties of their various employment positions in deciding who is eligible for remote or hybrid work arrangements, taking care to make consistent decisions for similarly situated employees and to consider any reasonable accommodation needs under the Americans with Disabilities Act. Employers should retain sole discretion to withdraw their permission to work remotely, because the arrangement may not work well for any number of reasons.
Designated Remote Work Areas. Employers have a duty under OSHA regulations to provide safe work environments, and safety is also important to avoid work injuries and worker’s compensation claims. Employers should therefore require employees to designate a specific safe and secure work area at their remote location.
Equipment and Supplies. Employers should make clear who is responsible for setting up and paying for the employee’s remote worksite, including, for example, any furniture, lighting, utilities and internet connections. Employers should also be clear about which equipment they will provide for a remote working arrangement. Frequently, employers provide laptops that employees can use both at home and at the employer’s main worksite.
General Expectations. Remote work arrangements typically do not change the duties or performance expectations for the job. The employer should be clear with remote employees as to performance expectations, attendance and work hours, availability expectations for video conferencing, and requirements to come to or work in the office from time to time. Furthermore, as a general matter, employers should make clear that remote work is not a substitute for dependent care. If an employee needs flexible hours for dependent care, the parties should address that issue upfront so that expectations are clear.
Managing Employee Performance. Employers should consider what means they have of evaluating and managing employee performance. Do the means involve monitoring computer usage? If so, the employer needs to have a policy in place to assure it is not violating an employee’s expectation of privacy. Additionally, employers should also consider how they will keep remote employees engaged in their work and performing as active team members. This may require some planning for in-person meetings and interactions.
Security and Confidentiality. Security of data, trade secrets, and intellectual property is an important issue for all businesses. Employers should review their security plans and assure that the remote-working employees are well informed of their duties regarding security and confidentiality, including passwords. If an employer does not have an agreement with employees regarding confidentiality and the protection of trade secrets and intellectual property, this is a good time to put such agreements in place.
Wage and Hour Issues. Wage and hour issues can become tricky with a remote work arrangement, particularly for employees who are not exempt from the overtime requirements of the Fair Labor Standards Act. If employers have employees who may travel from their remote worksite or have other wage and hour questions, we recommend consulting with legal counsel to assure compliance with state law and the FLSA. We also wrote two articles on this topic, which can be accessed here:
Interstate Issues. If an employer has employees working in other states, interstate issues need to be addressed. Employers should consult with legal counsel on whether they are “doing business” in the jurisdiction where one or more employees are working, so that any applicable requirements are addressed. Employers should also check with counsel on whether they have met the threshold for creating a “taxable presence” in the remote jurisdiction and whether to withhold local or state income taxes under that jurisdiction’s laws. Additionally, employers need to find out whether additional workers’ compensation insurance is needed in the jurisdiction where the employee is working.
Other Legal Issues. Finally, there are a variety of other issues that employers should address. Do the employer’s group insurance plans cover remote workers? A quick call to your insurance representative to assure that coverage applies is well worth the effort, particularly if a rider to the policy needs to be added. Employers should also consider the federal and state posting requirements – and a way to assure that the required disclosures have been provided specifically to the remote workers.
Many of us have learned that hybrid or remote work relationships can be a positive experience for many employees. Thinking through and addressing the above key issues will assure that the relationship continues to work well for all, and that employers don’t run into legal problems as a result of these relationships.
The Employment and Labor Department of our firm is hosting live seminars in Bismarck at the Radisson Hotel on Thursday, Sept. 30, and at the Hilton Garden Inn in Fargo on Friday, Oct. 1, We will address many of these issues, and more. To attend, you may register here: fredlaw.com/updates__events/events/
Kristy Albrecht is a Fredrikson & Byron shareholder in Fargo, and a member of the Employment & Labor, Litigation, Transportation and Appellate Groups. She advises employers on a variety of employment law issues, including hiring, firing, discipline, employee leave and accommodation laws, employee handbooks, drug and alcohol policies and separation agreements. She can be reached at [email protected]