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Remote work raises new legal issues for employers 

As remote work options continue, employment attorneys recommend companies come up with concrete ways of tracking and working with employees and making sure work policies are clearly defined. (Depositphotos)

The COVID-19 pandemic prompted many employers to shift employees to remote work. Today, what had seemed a temporary adjustment has become the new normal – a situation that presents a fresh set of practical and legal issues for employers.

Michael J. Neary, a principal at Lerch Early & Brewer, says employers’ biggest concern is how to effectively manage remote workers.

“Traditional ways of keeping tabs on employees and making sure they are engaged go out the window when they are no longer in the office,” Neary said. “I think employers are learning ways to engage with folks that are remote and to make sure that they are setting appropriate goals for employees.”

Discrimination and retaliation claims have been on the rise recently because policies are not consistently applied, he said.

“So much of this remote working environment, for a lot of employers, is so new that they are struggling to have a consistent policy about how to deal with performance issues,” Neary said, explaining that employers can be vulnerable to employee claims of unfair treatment.

Wage and hour concerns are another issue for employers, as non-exempt employees are entitled to overtime pay if they work more than 40 hours a week.

“The ability to work 24/7 from home is problematic for employers when you are talking about non-exempt employees because the employers have to ensure they have adequate policies and procedures in place to make sure the employees get compensated for all the time they work,” Neary said, adding that many employers have instituted time-tracking policies and procedures.

Melissa Menkel McGuire, a partner at Liff, Walsh & Simmons, also emphasized that employers must know when remote non-exempt workers are on the job.

“(Employers) have to have good record-keeping policies and good policies regarding accurate reporting of time worked for employees, or else they could find they owe unpaid minimum wage or overtime,” McGuire said, adding that state wage payment collection laws may apply too.

Experts advised employers to have a written remote work policy.

“You want to have a policy of what you’re willing to allow in terms of a remote working environment,” Neary said. “You want to do a holistic review of your positions to see which ones are remote-eligible.”

He emphasized that having such a policy in place helps new hires understand the company and helps the employer deal with remote work requests.

The policy should touch on employer expectations, including performance, start and end times, and compliance with cybersecurity requirements, Neary said.

McGuire said such policies should emphasize that remote work is a perk.

“I … recommend that clients have agreements stating that remote work is a privilege and it can be revoked if it is abused or if the employer decides it is not working out,” she said.

Neary said remote work policies should also state who – employer or employee – will provide equipment. He pointed out that, while employers must shoulder the costs of providing equipment to remote employees, doing so helps companies keep better control of their data.

“When COVID hit, everybody just went home and you had your remote technology, but as this goes on and becomes the new normal, do employers really want employees working on their home computer through a VPN into the network or do they want to require employees to only use a company-issued laptop?” he said.

Experts also pointed to potential IT vulnerabilities when employees use their own computers to access company platforms.

“You need to make sure you have policies and systems in place to protect your IT system,” McGuire said, explaining that systems can be vulnerable to cyberattack when employees work from their own computers.

Who provides office supplies such as printer ink and paper – and internet access – is another issue for employers.

“I think a lot of employers are struggling with how to account for that added cost that an employee may have to shoulder from working remotely,” Neary said.

An additional consideration for employers is what to do when remote workers move out of state – a situation that can create legal, tax and accounting issues.

“That is an area of the law that I think will continue to develop given the new normal,” Neary said. “Not only is it an accounting and withholding issue, but also there are unique state and local laws that may apply to an individual who is sitting in a far-off state or city.”

Experts also addressed privacy concerns that arise when employers consider whether or how to monitor employees. Some companies have adopted intrusive technologies to ensure their workers remain active, while others take a more hands-off approach.

Neary came down on the side of a more “human” approach, which he said seems to elicit less discord and more trust between employer and employee.