Charlotte Hodde, BridgeTower Media Newswires
Flexible work schedules are now as common a demand in hiring negotiations as 401(k) matching. More than 75 percent of workers worldwide are millennials who want to be evaluated by what they produce, not where they produce it. When employees work remotely, it reduces the overhead costs of rent and supplies, allowing companies to adapt to slowing global markets. Health care providers commonly prescribe work from home as a reasonable accommodation for disabled employees. And now, time away from the workplace will help employees slow the spread of COVID-19 and wait out the disease's incubation period.
There are an increasing number of reasons for allowing employees to work remotely. Yet the majority of employers have not developed policies or practices to prepare for and avoid the legal risks associated with such activity. Remote work impacts pay practices, accrual of sick time, eligibility for family and medical leave, and response to workplace injuries. The same precautions are necessary if you have one remote employee or many.
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Follow the right law
As a general rule, employees are covered by the laws of the location in which they work. If the employee is performing the majority of his or her work from a home office out of state, the laws of the home state control. Therefore, wage and hour and leave laws of the state or municipality should be followed instead of the laws of the state where the company is headquartered.
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Check eligibility for leave
Working remotely usually does not disqualify the employee from federal family and medical leave. To be eligible for protections under the Family and Medical Leave Act (FMLA), employees must work at an office of 50 or more employees working within a 75-mile radius. Oregon-based employers too often make the mistake of denying FMLA leave to teleworking employees, thinking they are only an office of one. The employee's remote work location is not his or her office location. The location that is important for considering FMLA eligibility is the location that directs and controls the employee's work where the supervisor is located and from where the person receives assignments. The employee's reporting office, if comprised of 50 employees or more within a 75-mile radius, will qualify any remote employee supervised from that office for FMLA coverage.
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Every email counts
Monitoring work time outside the office is crucial for ensuring remote employees are paid correctly. Nonexempt employees must be paid for all time worked, including time spent communicating on projects after regular business hours. There is more flexibility for paying employees who are exempt from overtime laws, but even then, protections are needed to avoid making unlawful deductions from exempt employee salaries for times in which they are presumed to not be working but are still sending emails from their sickbed. Uncompensated emails carry a disproportionally high risk of class action even small increments of screen time balloon into enormous awards, making these types of suits increasingly prevalent.
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Bringing the office home
Workplace injuries are compensable wherever the employee's workplace is located. "The risks of the home environment can be the risks of the work environment" was a finding in Sandberg v. JC Penney an Oregon Court of Appeals case. That means if an employee trips over her dog while plugging in her laptop and sprains her ankle, she is injured on the job. Injuries that occur during the course of work from home must be reported as if they had occurred at the office. A remote work policy should define the workspace so that the employer does not have to consider the risks of the employee working just about anywhere, and because workers' compensation law covers only injuries in places where the employee is expected to be.
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If you're sick, you're sick
Remote employees have more flexibility to work through sickness, which often results in employees neither using nor reporting sick leave. But employers still have the same responsibilities to track and report sick leave balances of remote employees. Employers that have decided to pay out unused paid time off at separation can expect to pay out large accruals of time if sick time is under-reported by remote workers. This can be avoided by a "boot and suspenders" approach practices that encourage employees to take advantage of paid time off and policies that discipline remote workers who act like call-in procedures do not apply to them.
These issues and more can be addressed in a remote work policy, ideally drafted by legal counsel. If kept all in one place, these policies will communicate to employees the responsibilities that accompany the privilege of remote work, and alert management to the areas of legal risk.
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Charlotte Hodde is an attorney with Barran Liebman LLP. She represents employers in a range of employment law matters.
Published: Wed, Apr 01, 2020
