Minimizing Employer Liability in Remote Workplaces

Posted: May 26, 2020

Almost overnight, the COVID-19 epidemic made remote work commonplace in many occupations across the country. While it has been challenging and stressful at times, employers have been surprised to see that the work is getting done, often sooner and at less expense.

Nationwide, an insurance and financial services company with more than 27,000 employees, embraced remote-work arrangements before the COVID-19 epidemic struck. Today the Ohio-based company is accelerating its push for remote work, announcing plans to transition from 20 office buildings to just four. According to CEO Kirt Walker, Nationwide will realize substantial cost savings while retaining effective management over its workforce as a result.

Tech giants Google and Facebook both recently announced that most of their workforce will be allowed to work remotely through the end of 2020.

Within the legal profession, the necessity of serving clients—online and outside the office—during weeks of government-imposed social distancing measures has proven that remote lawyering is more feasible than once believed. Attorneys who have participated in remote court hearings and remote depositions, argued in front of the Supreme Court of the United States, conferred with clients via Zoom conferences, closed deals, managed office staff, and taken on new clients entirely online have a new appreciation of the ability of technology to transform the profession.

It’s a fair bet that the newly interconnected legal system will not return to its old ways when the COVID-19 epidemic passes.

Finally, many employees are understandably reticent to return to commuting on public transportation and working in crowded metropolitan office buildings. If remote work is possible, they may insist upon it, thereby creating talent management challenges for law firms and other white-collar employers.

For many businesses, the transition to remote work materially impacts key aspects of the employer-employee relationship that could, if not handled wisely, create legal liability for the employer.

Let’s take a look at several legal pitfalls businesses should take care to avoid when managing remote employees.

Wage and Hour Laws

The Fair Labor Standards Act requires employers to pay overtime rates to nonexempt employees who work more than 40 hours per week. In order to avoid liability for overtime pay, employers must insist that employees keep accurate records of all time worked remotely. Unpaid meal breaks should also be recorded. Employees must be advised that working more than 40 hours per week requires prior employer approval.

Laws giving employees rights to paid sick leave apply to remote workers. Sick leave policies should be updated to address sick leave issues for remote workers.

Safe Working Conditions

State occupational safety laws and the federal Occupational Safety and Health Act require employers to provide their workers with a safe work environment. These laws apply even when the employee is working from home. While an inspection of each employee’s remote work environment is likely overkill, employers should encourage employees to take steps to ensure that their home is both safe and appropriate for the job duties being performed in the employee’s home.

Workers’ Compensation

Remote workers are entitled to workers’ compensation benefits if they are injured while working for the employer at their home. It is a good idea for employers to review their workers’ compensation insurance policies — as well as general liability policies — to make sure that they apply to remote workers.

Disabilities and Accommodations

The Americans with Disabilities Act requires employers with 15 or more employees to provide a “reasonable accommodation” for employees with disabilities. Under the ADA, disabled employees working from home should be provided the same accommodative computer equipment and other work-related assistance they would have been provided at the employer’s premises.

Unlawful Discrimination

Employers who have both in-office and remote workers can be liable for unlawful discrimination if decisions regarding which employees may work remotely, and which may not, are not supported by a nondiscriminatory, legitimate business purpose.

Privacy and Cybersecurity

Employers who monitor their employees’ communications, whether for productivity or to guard against cybertheft, must do so pursuant to established company policies that are clearly communicated to all employees. The employer should inform employees that monitoring will extend to personal devices if personal devices are used for remote work.

Remote Work Equipment and Reimbursements

Employers should ensure that remote workers have the necessary equipment to work effectively from home, ideally using employer-provided equipment. If the employee’s personal computer equipment is used, the employer should investigate to ensure that the employee’s equipment is sufficient to perform the required work.

Immigration

Federal immigration laws require all employers to review a new hire’s identity and employment authorization documents in the presence of the employee. The Department of Homeland Security has temporarily relaxed the physical presence requirement during the COVID-19 national emergency, thus making it possible to hire a new remote employee by reviewing the authorization documents online.

The bottom line: Businesses can effectively protect themselves against employment law liabilities by carefully thinking through all of these issues and incorporating their decisions in a written remote work policy.


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