When Remote Working Is a Liability

Joan McGuire

The new remote workforce poses legal challenges for employers that must comply with employment laws.

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The COVID-19 pandemic has made remote working the new norm at many workplaces and has given employees more flexibility in their schedules than ever before.

But the switch to remote working means employers have to go to extra lengths to make sure they are still adhering to common labor laws.

Businesses that employ a large portion of hourly workers face the most challenges in managing a remote workforce. Unlike employees who are paid a predetermined salary no matter how many hours they work, hourly workers are compensated for the exact time they are on the job. Most track their hours worked using time sheets.

For hourly workers who are working from home, it is particularly hard for the employer to keep tabs on the exact hours employees are working. Those workers may be answering emails in the evening because their workstation is in their living space, but that time may not be accounted for on a time sheet.

Kristin Bremer Moore, chair of the labor and employment practice group at law firm Tonkon Torp, expects a lot of wage and hour claims — assertions by employees that their employers have failed to pay overtime wages — to come out of the switch to remote working.

“It is what keeps me up at night,” says Bremer Moore. It is important for employers to set clear policies that spell out the expectations on the employee to track their time worked accurately, says Bremer Moore. The employer should also make sure the employee is taking breaks and recording them, which is easier said than done when they are working out of sight. 

“If employers aren’t properly training employees about how to maintain time sheets when they are working remotely, it will be fertile ground for wage and hour claims,” says Bremer Moore. “Employers need to train, train, train employees on those expectations and be vigilant those laws are being adhered to.”

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It may surprise employers that they are responsible for maintaining a safe work environment even if it is at their employees’ homes.

Bremer Moore recommends employers write contracts that stipulate that they can enter employees’ homes to check their work environment complies with safety guidelines, something she says employers have balked at because it seems draconian.

Nevertheless, this kind of provision in contracts can protect the employer from claims that employees have been subjected to unsafe conditions through remote working. “Ultimately, this isn’t an obligation the employer can put off on the employee. It is still the employer’s obligation to maintain the safety of the workplace.”

She also recommends employers spell out clearly what staff are expected to do while working from home. Employees should not all assume they can work whatever hours they want, if that does not match the employer’s expectation.

“Maintain those expectations and spell them out for the employee so there aren’t any ambiguities, such as working from home now means I have a flexible schedule,” says Bremer Moore.

Employers have to decide how much flexibility they will allow for employees who have to care for a dependent, such as a child who cannot attend school because of COVID-19-related closures. Certain employers are required until the end of 2020 to provide employees with paid sick leave, or up to 12 weeks in expanded family or medical leave, to care for a child under the age of 18 because of school closures.

If employees with school-age children have already exhausted that 12 weeks of paid leave, the employer can terminate the employee if they need the staff member to come to work, even though schools will remain closed in the fall across the country.

Bremer Moore adds she has not yet encountered an employer that has complained about an employee’s child creating a disruption to their work obligations.      

“Do cooperate and collaborate to carve out a more flexible schedule for employees working and taking care of children,” says Bremer Moore.

When the time comes for employers to bring back employees to the office, companies are likely to encounter staff who refuse to come back no matter what safety plan the employer has implemented to reassure staff.

The law does not stipulate that the employee has the right to continue working from home because of fear of returning to the office or because they live with a person vulnerable to infection. Bremer Moore recommends those employees are first provided with sick leave. After that leave is exhausted, the employer will face the difficult decision of whether to terminate.

“Does the employee continue to work from home or are they put on a leave of absence? Employers that really need to staff up are leaning toward replacing that worker because they have the need,” says Bremer Moore.

Many experts expect that working from home will become a normal part of work life, even after the pandemic is over. It is an expectation most employees will have, especially as employees have proven they can be productive working in the home.  

To ensure smooth sailing, employers should make sure they are being clear what they expect from workers both in and out of the office.

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