July 28, 2022 • Anne-Marie Mizel
Category: Legal Updates
Almost every business uses remote workers these days. But the potential pitfalls of remote work include potential legal liability if care isn’t taken to ensure legal compliance.
• Timekeeping. Regardless of where non-exempt employees work, they are entitled to meal breaks and rest breaks in accordance with state law (where applicable), and to payment for all of the time worked under federal and state law, including premium pay for overtime. All employers must have effective timekeeping systems so that non-exempt employee work time can be tracked and appropriately compensated. Moreover, employees need to be reminded very clearly that they must track all of their work time. If they work “off the clock” without correction, they could come back later and sue to be paid for that time, because rights under the Fair Labor Standards Act (and many state wage laws) cannot be waived.
• Confidentiality. Remote workers may have access to proprietary information, that of the employer and/or of its customers. Employers must be sure either to prohibit work using personal devices or impose appropriate restrictions (such as password and other protections) for company and customer information. Employees should also be instructed regarding the risks of using public wi-fi accounts like those in coffee shops or other public areas.
• Customer-Facing Jobs. Working from home entails the possibility of interruptions from children and other cohabitants. The law prohibits discrimination against someone due to child-care responsibilities or the need to care for a disabled person, but an employer may require certain conditions to be met for remote work, especially in a public-facing job, as long as those conditions are required equally across the board.
• Workers’ Compensation. Believe it or not, it is not unknown for remote workers to try to make workers’ compensation claims if they are injured on the job while working from home. Employers can avoid this kind of problem by ensuring that the employees’ designated home workplaces are free of hazardous conditions, perhaps with the assistance of the employer’s workers’ compensation insurance carrier.
• Handling Remote Work Requests Fairly. If remote work is done by request rather than as a matter of course, make sure that all such requests are handled fairly. Employees can be quick to assume that if their request is denied, it is because of some unlawful reason, such as disability, religion, or gender. Make sure that the process is transparent and even-handed. For the same reason, ensure that the conditions for expense reimbursements are clearly stated.
Finally, make every effort to avoid employee burnout. Advise employees to separate their work from their home life as much as possible, include remote employees in company meetings and social gatherings, and ideally, have an EAP option available to those who might be feeling isolated. Workers who are content and have open communications with their employers are far less likely to stir up legal trouble than those who feel isolated or disgruntled.
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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.