Employers must be prepared to continue with remote work as the change over the last two years to where we work has become more permanent. With this change, employers face a number of employment law issues and considerations. Three of these—employee pay, protection of company information, and use of the employee’s own equipment to do the work—are discussed here.
With respect to employee pay, if employers have not already done so, employers must develop systems to effectively monitor an employee’s work time to meet the realities of the remote work environment and to ensure compliance with the Fair Labor Standards Act (“FLSA”). The FLSA requires that employers pay non-exempt hourly employees for all hours worked in a workweek and overtime for hours over forty (40) in that workweek. It also requires that an employer track and record the hours worked by its non-exempt employees.
Historically, tracking and recording work hours was accomplished by requiring employees to punch in and punch out on a time clock. But there is no time clock in the remote work world. Also, the beginning and the end of the workday are not necessarily well defined in the remote work world. It is very likely that the old way of tracking and recording work hours simply does not fit how many employees are working these days. It is important that Employers develop well defined timekeeping policies that clearly define how the day starts and ends, prohibit off-the-clock work, and carry consequences when the policies are not followed.
Protection of Company Information
As remote work becomes more permanent, employers must also evaluate their systems for protection of sensitive business information and trade secrets. From a technology standpoint, in the remote work world, employees could be working in a less secure system as it relates to protection of sensitive company information. Working in this way raises a number of questions regarding the employer’s obligations. Does this mean employers must invest in secure systems and technology to ensure every remote work environment is secure? Does this mean employers should not allow employees to perform work from personal devices? Does this mean employees should not be given the option of remote work? The answers to these questions will depend on the type of work and the sensitivity of the information.
As it relates to the employee’s use of his own equipment and systems, employers must also consider how this remote work arrangement impacts their business expense reimbursement policies. Employers should evaluate the current policies and provide clear guidelines to employees. Employers should define what is covered. The policies should have a procedure that allow the employer to control and monitor. With mandated remote work, as opposed to work remote as an option, employers will likely be required to provide more expense reimbursement to employees.
The takeaway for employers is that now is a good time to evaluate your existing policies and practices. Addressing this now ensures you have policies in place to inform your employees of the rules and expectations and to avoid exposure due to operating in a manner that is not in compliance with employment laws.