The COVID-19 pandemic has prompted employees and employers alike to embrace remote work at an unprecedented rate. Labor laws haven’t necessarily “kept up” with business realities. Hoosier employers should be mindful of several risks that commonly arise with telecommuting.
- Remote Worker = “Branch Office.” Having an employee work from their home in a different jurisdiction (a different state or locality…and especially a different country) probably means you’re “doing business” in that jurisdiction. You may owe different taxes and have to file reports with new agencies. Local law may grant those employees different pay, leave, or other entitlements. These all may be “worth it” for the talent you can access, but it should be thought through sooner than later!
- Tracking/Paying ALL Time Worked. It’s easier than ever before for remote workers to work when it’s convenient for them – evenings, weekends, etc. – and even easier to miss payments for compensable time. Accurate, thorough records are critical to avoid Fair Labor Standards Act (FLSA) and state law wage liability, especially for non-exempt employees. And no, it’s not enough to say employees bear all responsibility for reporting their time or to ignore “de minimis” amounts of time worked. Even small increments spent checking email, voicemail, texts, etc. can add up to serious exposure if not managed proactively. Periodic audits/checks and supervisory training are vital!
- Employee Medical Minefields. If an eligible employee can’t work for the Family and Medical Leave Act (FMLA)-qualifying family or medical reasons, they need to be given job-protected leave (read: excused absences) – even when working remotely. Monitoring why expected/scheduled time wasn’t worked by telecommuters can be more challenging, but it’s a requirement nonetheless (because the FMLA requires certain employer notifications once an employee “potentially” qualifies). Similarly, the Americans with Disabilities Act (ADA) requires employers to reasonably accommodate medical disabilities whether the worker is at home or “on site.” Even though the ADA typically obligates employees to ask for help, that’s not a reliable, black-and-white rule. For example, it may seem like a team member is responding too slowly because they’re doing laundry, streaming movies, or doing other personal activities on working time. But it’s equally possible that they’re suffering through an episode of intermittent illness like migraines, anxiety attacks, etc. The extra effort needed to check in on those who are otherwise “out of sight” is typically cheaper than the litigation costs required to argue later with a plaintiff’s attorney pursuing an ADA or FMLA claim.
Joe Pettygrove leads KGR’s Employment Law Practice.
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