According to Gallup, a global analytics and advice firm that helps leaders and organizations solve their most pressing problems, the number of days employees are working remotely has doubled since the pandemic began. While there are no laws which exclusively apply to remote workplaces, remote work does come with additional compliance risks.
Below is some general guidance for employers.
Logging Hours
Make sure that employees are logging in all their time. Keep in mind that when working from home, the boundaries between work and home life can be easily blurred. Employees may be racking up “off the clock” work, and even overtime, for which they are not being paid. While this may seem harmless enough at the moment, particularly if the employee is not complaining, unpaid wages can come back to bite you once the employee is on their way out the door.
A great way to log hours is through time and attendance software. NetClockIn, our robust yet affordable time and attendance system allows you to accurately track labor costs both remotely and in the office. You can track hours worked, breaks, and be notified when employees are approaching overtime. For added accuracy, you can create a geo-fence which only allows employees to clock in and out within a certain distance of a specific location. This means an employee cannot clock in before they enter the office, or if they work from home, they cannot clock in and out from the grocery store. If you have employees who work in the field, this system also allows them to accurately track work hours and breaks wherever they are.
NetClockIn starts at $20 per month plus $1 per active user per month. Click here for more information.
Minimum Wage
Employees should be paid at least the minimum wage of the state where they physically work, whether this is a satellite office or their own home. Beyond that, it is important to be aware that some cities and counties have even higher minimum wages than the state they are located in. In general, with most employment laws, you should follow the law that is most beneficial to the employee.
Click here to see if your state or county has a minimum wage change in 2021.
Breaks
Remote employees must take all required breaks and rest periods required by law as if they were in the workplace. As mentioned above, NetClockIn can help with tracking breaks.
Harassment Prevention Considerations
You may have employees working in a state that has a lower bar for what is considered harassment or which requires harassment prevention training. You can find this information on the State Law pages on the HR Support Center.
Remote work also comes with additional opportunities for harassment (even if it does not rise to the level of illegal harassment) such as employees wearing clothing which is inappropriate, roommates in the background unaware they are on camera or visible objects which other employees may consider offensive. You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. That said, going overboard with standards which you apply to employees’ private homes can cause anxiety and morale issues, so make sure your restrictions have some logical business-related explanation.
Workplace Posters
Many of the laws related to workplace posters were written decades before the Internet, and their requirements do not always make sense today.
The safest option to ensure you are complying with all posting requirements is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters in their remote office. If you have employees in multiple states, you should send each employee the required federal posters, plus any which apply to the state in which they work.
Alternatively, more risk-tolerant employers often provide these required notices and posters on a company website or intranet which employees can access. Several newer posting laws expressly allow for electronic posting, but this is not allowed in all jurisdictions.
For peace of mind, you can sign up for our labor law poster subscription. With this subscription, you will be updated on new labor laws and sent new posters when changes apply to you.
FMLA Eligibility
Remote employees who otherwise qualify will be eligible for leave under the federal Family and Medical Leave Act (FMLA) if they report to or receive work assignments from a location which has 50 or more employees within a 75-mile radius.
According to the FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” For example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.
Verifying I-9s
In normal circumstances, verifying the Employment Eligibility Verification, Form I-9, requires that employers, or an authorized representative, physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the fields in Form I-9’s Section 2.
However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers and workplaces which are operating remotely due to COVID-19 related precautions. In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely) are not required to review the employee’s identity and employment authorization documents in the employee’s physical presence. Inspection can instead be done remotely. As of the date of this article, this temporary rule is still in effect.
Equipment
In some states, an employer is required either to provide employees with the tools and items necessary to complete the job or to reimburse employees for these expenses. However, workstation equipment like desks and chairs is usually not included in this category of necessary items.
That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job. In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably not be an undue hardship and therefore something you should do.
Deciding Who Can Work from Home
You may offer different benefits or terms of employment to different groups of employees if the distinction is based on non-discriminatory criteria. For instance, a telecommuting option or requirement can be based on the type of work performed, employee classification (exempt v. non-exempt), or location of the office or the employee. You should be able to support the business justification for allowing or requiring certain groups to telecommute.
This post is provided by the HR Pros at the HR Support Center and Corporate Payroll Services. It is for informational purposes only and is not to be considered legal advice. When you need essential information on human resources issues, from benefits, hiring, and management, to culture, technology, and regulations, HR Support Center is a resource on which you can rely. To learn more, visit www.corpay.com/hrsupport or contact us at 770-446-7289 x2102.
About Corporate Payroll Services
Corporate Payroll Services is one of the largest independent payroll processing companies in the U.S. specializing in affordable payroll services, workers compensation insurance, employee benefits, retirement plans and more since 1991. We currently serve over 6,000 small to medium-sized businesses throughout the United States, Puerto Rico, and the U.S. Virgin Islands.
