Considerations for maintaining telework during closures and beyond

Stephen Scott and Natalie Horwitz
BridgeTower Media Newswires

COVID-19 has had an unprecedented impact on the American workforce. Many companies have rushed to implement a temporary remote work policy. Consider the following guidance to help inform long-term maintenance of such policies.

Which positions are appropriate for remote work?

Employers may measure the viability of remote work in a position by evaluating the feasibility of: (a) performing all job functions remotely; (b) modifying the position to exclude non-remote job functions; or (c) modifying the position to be partially remote.

After deciding whether remote work is appropriate, and for what period it is appropriate, clearly articulate to all employees whether their positions are appropriate for telework – and if they are, for what type (long-term, short-term or partial).

For partial telework-eligible positions, employers should clearly define which job duties may be performed remotely and which require an employee to leave home. Maintaining clear rules and expectations is essential to managing remote workers for pay, leave and discipline purposes.

Does a remote work policy need to be instituted or updated?

A clear, written policy is a great way to set remote work expectations for employees and keep them up to date on the company’s official policies and procedures established in response to the COVID-19 pandemic. If a remote work policy was instituted specifically for COVID-19 and intended for short-term use, or if an existing telework policy that did not specifically contemplate COVID-19 was used, then a company’s policy may need an update.

A remote work policy for hourly employees should specify required working hours, meal/rest periods, the procedure for recording time worked, and whether employees must obtain permission prior to working outside of work hours or working overtime, and how that permission should be obtained.

How should remote workers’ time be tracked?

A process to ensure accurate records is key. For example, employers may require that employees have an established schedule, keep track of their own hours, and request from management permission to deviate from the established schedule for any reason. Such flexible work schedules may be difficult to manage and require a detailed analysis of the employee’s time and/or the employee’s leave to determine an employer’s obligations on any given day; thus, it is important that employers emphasize to employees that they should be diligent with adhering to established schedules, but there should be an open dialogue for addressing deviations.

Employers should also properly determine what kind of time is compensable. Subject to the Labor Department’s new temporary rule, the following examples represent a few scenarios where employees must be compensated:

On-call time: A nonexempt employee must be compensated for all hours working or hours not working when he or she is on call and cannot use the time for his or her benefit.

Unauthorized time: Employers must pay employees for all overtime work, even when it is not approved. However, if a policy prohibits an employee from taking overtime without permission, then the employee, though paid for unpermitted overtime, may still be disciplined for working without permission.

Commuting: Though time spent commuting to work generally is not compensable, a nonexempt employee who might telework, but must come to the office before or after teleworking for some portion of the day, may have the intervening travel included as hours worked.

Salaries: Exempt employees who must be paid on a salary basis and work any portion of a week are generally entitled to pay for the entire week. However, there are some exceptions to this rule as described in federal law (29 C.F.R. 541.602). Similar, but different, exceptions may apply to other employees with salaries or guarantees.

Employers should choose one method for tracking time and apply it uniformly for all employees to the extent possible. Inevitably though, because there is no one best method for tracking employee time in all situations, the process will vary by employer, and even by position.

Additionally, there might be some flexibility with respect to teleworking employees interrupted for COVID-19 reasons. Accordingly, consult with counsel for answers to specific questions regarding what constitutes compensable time or the best methods to track compensable time in a given situation.

How should employee performance be managed remotely?

Successful managers are consistent in applying policies and maintaining open communication with their employees. Specifically, managers should ensure that they regularly:

• meet with remote workers by phone or video to establish measurable goals for employee performance, review employee performance, and listen to and address any employee concerns (after these meetings, employers should document the conversation in a follow-up email to the employee);

• maintain up-to-date written policies, including for remote work, confidentiality and security (employees who have a written guide of their employer’s expectations will be better prepared to work productively in the home environment and meet management’s expectations);

• check in with employees regarding time tracking and contemporaneously document any time policy deviations by email to the employee;

• provide support to employees, including working technology and IT support; and

• discipline employees who fail to follow established policies.

Employers should diligently ensure employees’ work time is tracked properly. Any departures from established policy should be documented at the time the violation occurs or is discovered. Employers also should not fear pursuing discipline just because an employee is remote; an employer discourages misconduct by consistently disciplining employees who abuse telework and deviate from established policies. Conversely, employees who request accommodations in their work schedules for reasons related to COVID-19 should be accommodated to the extent possible.

Not every position is perfect for remote work. However, with careful consideration of work needs and position functions, employers can take advantage of the many technological tools available and maintain a productive remote workforce. By diligently maintaining two-way discourse with remote employees and educating all employees on clear, written and up-to-date policies, employers can ensure that remote work is set up to achieve its full potential. Please contact counsel with any questions.

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Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.
Natalie Horwitz is an associate in the Portland office of Fisher Phillips. She advises and defends employers in all types of employment-related matters. Contact her at 503-205-8099 or nhorwitz@fisherphillips.com.