Remote work was relatively uncommon before COVID-19, with fewer than one-third of employees performing at least some remote work. Now, nearly half of the American workforce continues to work remotely. It has been more than a year since stay-at-home orders were lifted and it looks like remote work is here to stay.
Employers had to react quickly to the challenges of the pandemic and may not have had the luxury of time to properly implement a remote work policy under those circumstances. From a legal compliance standpoint, a good remote work policy should address the following, at a minimum:
Timekeeping
The Department of Labor explains that employers must use “reasonable diligence” to determine the hours worked. The relevant inquiry is what the employer “should” know, not what the employer “could” know.
The following are some best practices for keeping time for non-exempt employees who are working remotely:
- Have a set schedule. If flexible schedules are needed, require employees to communicate when they will be working and set reasonable limits on this.
- Train managers and employees that they are not expected to perform any work (e.g., responding to emails) outside of scheduled work time.
- Implement and communicate reasonable procedures for reporting ALL hours worked.
- Do not discourage accurate and complete reporting.
Meal and Rest Breaks
Employers run the risk of noncompliance when an employee working remotely decides to take a meal break and is interrupted by a manager or supervisor who might not have been aware of this when they called or texted the employee to discuss work.
The best practice is to have a set time for meal and rest breaks and train management not to contact employees during scheduled breaks. Employees must accurately document the time that they started and ended their meal break. Rest breaks do not need to tracked, but employees should be reminded that they need to take them even when they are working remotely.
Reimbursement of Business Expenses
The California Labor Code requires that an employer reimburse an employee for all “necessary” business expenses incurred by the employee as a direct consequence of performing the job. (Lab.C. §2802).
Common expenses for remote employees include cell phones, home internet plans, computers, office supplies, postage, printing costs and computer software licenses. Whether or not the expense was “necessary” for the employee to incur should be evaluated on a case-by-case basis, but employers should consider what is reasonable under the circumstances of an employee who is working remotely.
A written remote work policy should address the employer’s process for reimbursing these expenses. For expenses that are difficult to calculate, such as the employer’s use of a cell phone for both personal and business-related purposes, employers may consider a monthly stipend. An employee’s agreement to this stipend is good evidence that this stipend was reasonable.
Security and Confidential Information
Employees with access to sensitive information should work on IT-approved hardware and internet connections to servers must be secure. Employees with access to trade secret and confidential information should renew their commitment, in writing, to protect this information and should be required to conduct work on work devices only, not on personal hardware or personal email accounts.
If employees provide sensitive health information while working remotely (e.g., COVID-19 test results), employers should ensure that it is properly stored and that other employees do not have access to it.
Employee Management Considerations
For many employers, productivity is a major concern for remote work. Keystroke tracking and other technologies have been implemented by employers who want to monitor employee activity more closely. Employers considering this should be aware of the privacy, security and employee trust issues that may arise from the use of this technology.
The California Constitution affords all persons a reasonable expectation of privacy and that privacy is heightened in the home and on personal devices. Employers should obtain written consent from employees and develop a written privacy policy before implementing these measures.
Constitutional Considerations for Public Agency Employees
The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures by government actors, including public agency employees. The U.S. Supreme Court recently addressed the issue of privacy expectation in public workplace electronic communications.
Based on their decisions, public agency employers considering the use of computer monitoring should:
- Establish privacy expectations with a coherent policy that covers all technologies used in the workplace;
- Require affirmative consent by employees;
- Clearly articulate a work-related purpose; and
- Reasonably limit any search to the employer’s legitimate, work-related objectives.
The “Great Resignation”
If the current labor market is any indication, this pandemic has shifted perceptions of what it means to “work.” Employees and job candidates are now seeking more flexible work arrangements and the option to work from home when practicable. Many workers are still anxious about returning to their place of work and are seeking more physical privacy in their work environment to feel safe.
Employers seeking to remain competitive in this labor market ought to consider these factors, especially if they are struggling with employee retention. Many employers have embraced employee preference for the hybrid model, which allows employees to balance the convenience and safety of working from home with working in the office for in-person collaboration and productivity.
Litigation Concerns
Labor laws in California are notoriously employee oriented. Indeed, more employment lawsuits related to COVID-19 have been filed in California than in any other state. Wage and hour violations, wrongful termination, retaliation and disability discrimination are among the most commonly asserted claims. The majority of these lawsuits have contained at least some factual allegations related to remote work arrangements.
Crucial to the defense of any employment lawsuit is evidence of employer policies and practices that comply with California law. Employers permitting employees to work remotely should work with experienced and knowledgeable employment counsel to implement such policies and mitigate the risks of liability inherent with remote work.
Ryan Quadrel is an Associate Attorney with SBEMP Attorneys practicing primarily in labor & employment law. He can be reached at (760) 322-2275 x251 or [email protected].
Nothing in the above article is intended to constitute legal advice. Please seek legal counsel to suit your specific circumstances for any legal advice.
