Challenges With Remote Work
Employers face many challenges with their remote workers, some obvious and some not. Employers can manage their employees working remotely, but they need to know what to expect and put in place mechanisms that will allow them to manage the employees effectively. Employers should also adjust their expectations on working hours, particularly with exempt employees.
Remote I-9
The I-9 is the employment verification document that must be completed by every employer for every new employee within 3 days of their start date. This process generally has certain requirements that must be complied with, including who can perform the verification in each state, e.g. a notary. This process also must generally happen in a face-to-face meeting, so that the employer’s agent can review the documentation in person. However, due to the COVID-19 pandemic, the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have put in effect a temporary modification to the I-9 requirements for employers that are operating remotely, allowing more flexibility complying with the process requirements. The original press release detailing the exception to the requirements can be found here. We have also previously issued a post detailing the flexibility of the requirements, which can be accessed here.
As of November 18, 2020, ICE announced that the modifications providing such flexibility in the completion of I-9 documentation would be extended through December 31 due to the ongoing COVID-19 pandemic.
Reimbursement of Expenses
Some expenses, such as reimbursement for reams of paper, pens, printers, and computers for working from home may be obvious. It may not be as obvious that some employers should reimburse their employees for a portion of their employees’ Wi-Fi bill, part of their cell phone bill (if employees are required to use their personal phones for work purposes), and office furniture if employees need to purchase some to enable them to work from home. While an employer may think that these expenses are not their responsibility because the employee already had these expenses prior to working from home and, if the employee has an unlimited call, text, and data plan, there’s no additional expense to the employee by continuing to pay the same bill, this responsibility may exist dependent on the state in which the employee works. In 2014, a California Court of Appeal held that employers are obligated to reimburse employees for a reasonable percentage of their cellphone costs, even when the employees do not incur any extra expenses in connection with their work-related cell phone use. This requirement could have significant ramifications in the telecommuting context, where employees may utilize their own resources (e.g. WiFi, cellphone, printers, etc.) without incurring any additional out of pocket costs. However, this is not the requirement everywhere in the country. In fact, in most states, employers are not required to reimburse business expenses, and federal law only requires that employers reimburse employees for business expenses when not doing so would result in the employees’ wages falling below the minimum wage requirements. 29 C.F.R. 531.35. Several states, including California, the District of Columbia, Illinois, Iowa, Massachusetts, Montana, and New York, require employers to reimburse employees for necessary business-related expenses, but not all of these states require the reimbursement of costs already being incurred by the employee for personal use. In most of these states, an employer is only required to reimburse for additional costs incurred by employees, such as the cost difference for upgraded WiFi, upgraded phone plan, office furniture, printers, paper, ink or toner, upgraded equipment, additional monitors, etc.
Employees Actually Working
The largest issue that an employer will face with remote employees is knowing that the employee is actually working during working hours. It should be noted that ensuring that an employee is busy and not sitting idle on company time is an issue of proper management. A manager should be aware of what their subordinates are working on and how effectively and efficiently the employees are performing their work. Unfortunately, one consequence of remote work is that the employees have a multitude of potential distractions that may occupy their thoughts or time, such as laundry, kids, food, errands, etc. Employees that allow themselves to be distracted by such outside factors may not be well suited to remote work. If an individual working from home is not busy or their workload is running light, the employer should provide them with work to perform to keep them busy. If there’s no work to be completed by the individual, then it’s not the employee’s fault that they’re making lunch or watching television, but it may be a case of overstaffing. Employers should keep in mind that employees that are exempt from wage and hour requirements are being paid for their work, not their time. If the individual is an efficient employee and they’re pulling their weight on the team, if may be in the business’s interest to keep the individual on, even if the individual is not working a full eight hour day. The harder situation to monitor is the non-exempt employee working from home, because they’re literally being paid for their time. If the non-exempt employee is wasting dollars by ignoring their work, then the business should re-evaluate their contribution to the team. Businesses with non-exempt remote employees should always keep in mind that whether a non-exempt employee is working in the office or remotely, it is the business’s responsibility to ensure that they’re complying with all wage and hour laws, including overtime laws, time recording, and meal and rest breaks,
Professional Environment
Employers should have a code of conduct and communicate exceptions to their employees even while working remotely. This should be catered to the expectations of the remote employee based on the individuals’ tasks. For example, if an individual is working from home and taking a video call with a client in their bedroom, the employer should set the expectation that the employee is expected to be in professional attire and their background be suitable for such an encounter, I.e. no teddy bears or beds in the background. Ideally when setting such a policy, the employer should require the employee to have a blank background, such as a blank wall or a screen, behind them during such video calls, to avoid discriminating against certain symbols or artwork that may appear in some employees’ homes. If the employee does not have such a space, then the employer should provide a blank screen that the employee can install when needed.
Return of Work Equipment
Employees working remotely should be provided with work equipment to perform their duties, so as to prevent the employer from finding themselves responsible for personal equipment and the accidental or intentional dissemination of confidential information. However, sending out equipment to an employee’s home makes it more difficult to retrieve the equipment when the employee’s employment comes to an end.
When an employee’s employment comes to an end, the employer should make it as easy and simple as possible for the former employee to return the company’s equipment. The employer should terminate the employee with enough time left in the workday for the employee to return the equipment, to avoid having to pay the employee for any more time “worked”; the employer should also provide a mechanism for the employee to claim the mileage for dropping off the equipment, as the employee’s regular place of work may be the employee’s home; and the employer should arrange with a shipping service to have the equipment packaged and sent back to the employer’s place of business and provide the employee with a pre-paid shipping label, if possible.
Taking these peremptory steps will prevent employees from hanging on to equipment for a long time, will ensure the individual’s availability to drop off the equipment (because they’re supposed to be available for work during that time anyway), and will prevent the employee from incurring additional expenses to package or ship the equipment.
Seek Counsel
Given the complexities in this area of the law, and the overwhelming number of employees now working remotely due to COVID-19, employers that have implemented or are implementing telecommuting programs should consult with counsel to help ensure compliance with their legal requirements. Contact Us today to discover how we can help you with your compliance requirements.
