Full-time remote work in the U.S. was up more than 40% as of mid 2020 25% of all professional jobs in North America will be remote by the end of the year, which is good news for many workers. More than two-thirds of employees who work remotely would prefer to stay remote permanently, according to a 2021, Gallup poll.
Wilson Jarrell andBecky Zuschlag.
Whether a company provides temporary or permanent remote work options for its employees, creating a written policy and understanding the implications of employees working out of state are necessary. Employers face real risks if they don’t, such as potential liability from accidental situations.
The policy considerations.
While each company has its own remote work policy, there are a few key considerations that all companies should consider.
The purpose of the policy is something to think about first. The company should clearly state that it is a temporary policy if the remote work policy is intended to be temporary in the event of a public health emergency. Employees don’t have an expectation that the policy is permanent, and the company can change or alter the policy at its discretion.
It is not appropriate for remote work to be done for all employees. If all employees aren’t allowed to work remotely, state which positions are eligible for remote work. An employer has the power to determine if an employee is permitted to work remotely.
To avoid discrimination, implement and enforce a remote work policy uniformly and consistently. In the policy, be sure to include an approval process and who approves requests. The more discretion that is used to grant an employee the ability to work remotely, the more risk there is. Allowing one responsible employee to work remotely, but not another less responsible one, is a legitimate justification. A rebuttable presumption of discrimination can be created when two employees are treated differently and one is in a protected class and the other is not.
Employers have less control over when and how remote employees work as well as less ability to track their time, because of the independence that comes with remote work. Nonexempt employees are still required to track their time and comply with meal and rest breaks, even if they are working from home.
Expectations about availability should be set by an employer. When should employees be available? Will they still have to travel, attend meetings, andTrademarkiaTrademarkiaTrademarkiaTrademarkiaTrademarkiaTrademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia,Trademarkia, When employees should be available, and how quickly they should respond to emails, phone calls, and any other forms of communication should be clearly stated by the company. Which mode of responsive communication is appropriate is indicated here. Define what the terms mean if employees are supposed to respond promptly or in a timely manner.
Depending on the organization and clientele, there are other considerations that may be relevant to the workforce: overtime approval, dress code considerations, confidentiality, ergonomics and other worker safety considerations, internet stability, etc.
The management of out of state employees.
More and more employees want to work from other places. Many states turned a blind eye to remote worker issues during the more uncertain times of the epidemic. The temporary nonenforcement of these laws is a thing of the past, and states are recognizing that employees are working remotely, both in and out of state, at an unprecedented scale.
Minimum wage and overtime laws, payroll timing and method requirements, meal and break requirements, leave laws, restrictive covenant requirements, unemployment and many other general business and employment obligations can be related to having remote workers in other states.
Employers should have a policy requiring employees to inform them in advance where they are working when working remotely, and require them to get permission before doing so. An employer can decline permission for an employee to work from a jurisdiction that they are not set up to do business in. Before allowing an employee to work from a new location, the employer should partner with counsel to make sure they are complying with the requirements of that jurisdiction.
Implementation and policy application.
Whether employees are in the same jurisdiction as the business or working out of state, implementing and enforcing a remote work policy on a uniform, consistent basis is paramount. Employees that are approved for remote work should review, acknowledge, and sign a policy. Clear expectations at the beginning can prevent headaches down the road for a company and its employees.
A law clerk and an attorney are both associated with Barran Liebman. He represents employers and management on many issues. She works with attorneys in employment, labor relations, and benefits practices.