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Employees working from home? There are issues to consider

There is no employer in this country whose operations were not dramatically impacted by the COVID-19 outbreak this spring. While the coronavirus disrupted the workplace in countless ways, one of the biggest sudden adjustments was the massive increase in employees working remotely from home.

For some employers, this was nothing new. For other employers, however, this probably has been a logistical adventure. Either way, having employees working from home raises a host of legal implications. That means it’s a good idea to conference with an employment attorney to discuss issues like the following:

  • Wage and hour laws

Under the federal Fair Labor Standards Act, any “non-exempt” employee (an hourly wage worker with no managerial or discretionary decision-making responsibilities or a salaried administrator, manager or professional who makes less than $684 per week) is entitled to overtime pay at 1.5 times their regular rate. But it can be very challenging to comply with the FLSA in a remote environment where work and home gets blurred.

For example, it can be hard to tell how many hours employees are actually working and when they’re on or off the clock. It’s critical to remember that the FLSA applies in both traditional and remote work settings and that if you do not have strong systems in place to monitor and record what your workers are doing, you could run afoul of the FLSA and find yourself subject to an enforcement action or a lawsuit.

Another FLSA issue is the minimum wage. The federal minimum wage is $7.25 per hour. But each state has its own minimum wage laws and some states’ minimum wages are higher. If you have employees who live in multiple states commuting to the same physical workplace (for example, a St. Louis company with workers living in Missouri and Illinois or a Boston business with employees who live in Massachusetts, Rhode Island, New Hampshire or even Maine), you’re subject to the wage and hour laws of the state where your business is located.

But when your employees work from home, this can complicate things. If a non-exempt employee is working from home in a state with a higher minimum wage, a court could decide they’re entitled to earn that rate. An employment attorney can help you navigate this trap.

  • Discrimination laws

The coronavirus situation has led to remote work by necessity. As the crisis clears, many workers will probably opt to have their employees back in the physical workplace. Others, however, may decide to continue to allow a certain degree of working at home as a privilege.

If this is the case, it’s critical that work-from-home eligibility be based on neutral factors such as job responsibilities, past performance, seniority and the like and that these requirements be applied consistently.

It is equally critical that remote employees be subject to the same rules and expectations as other workers. Failure to do so could potentially lead to a discrimination suit if an aggrieved worker can somehow tie unequal treatment to his or her race, sex, religion, ethnicity or disability.

Similarly, employers need to make sure there’s a clear written policy in place regarding the use of electronic communications like email or text. It’s very easy for workers to treat these mediums as informal communication and let their professional guard down, creating the risk of inappropriate comments that could be interpreted as sexual or racial harassment.

  • Privacy and security

The more employees you have working remotely, the greater the possibility of a data breach that could result in legal trouble. That’s why it’s important to have a written work-from-home policy with clear protocols for accessing and transmitting confidential information.

That’s also why employers need to make sure remote access to company resources is secure with passwords, firewalls, antivirus software, encryption and other security technology.

Employees working remotely will also likely be using their own Wi-Fi (or public Wi-Fi if they camp out at Starbucks or Panera for a change of scenery in a non-pandemic situation).

If that’s the case, it’s important to have protocols in place about what kind of information they can access or transmit.

These are just a few issues to consider. Employers also need to consider the health and safety of the employee’s workspace for OSHA compliance purposes and because work-at-home injuries may result in workers’ comp claims. Talk to an employment lawyer where you live to discuss these and other issues.


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