Remote work, telework, telecommuting, and work from home (WFH) are just a few titles that different employers have used to describe employees who are not working within their physical workplace. While working from home has become popular this past year during the pandemic, many organizations, especially those with employees in more than one country, utilized the concept of remote work long before the pandemic began.
While a number of employers have already reopened their workplaces, others are still considering whether it is necessary to have all employees onsite, or whether allowing employees to have a remote workplace or a hybrid work schedule is best for their organization. Employers may be attracted to the possibility of reduced overhead, the possibility of improved employee productivity, morale, and retention rates, an opportunity to be more inclusive in hiring practices, and the ability to extend hours of operation for remote teams in different time zones. Just as employers are considering their options, many employees who have experienced working from home are reluctant to return to their physical workplace. After all, these employees have already learned how to complete their work remotely, navigate online meetings via Zoom, Teams, or another video platform, use online communication tools such as Slack, and use online project management tools, such as Trello. As such, most companies have experienced at least one employee who has resigned or pushed back because he or she wants to continue working remotely. The tangible reasons for the push-back are varied. Some employees may have disability-related issues that prevent vaccination. Others are working mothers who have enjoyed the extra time in their schedule with their young children. Some express the value of saving time by not commuting to work and others appreciate the cost savings by not having to pay for gas, lunches, child care, and other incidental expenses. These remote employees also may recognize that they experienced less work stress and an improved work-life balance during the pandemic when they worked from home.
Obviously, not all employers offer work that is conducive to working remotely. However, as it was recognized during the pandemic, many jobs that formerly were not considered eligible for remote work succeeded in a remote capacity, at least on a temporary basis. While employers have the right to require that their employees work onsite, there may be instances where they determine that continuing remote work for some or all employees may benefit both the employees and the employer. However, there may be concerns with remote employees that may be great enough to warrant onsite work. Employers may may want their employees to be onsite for customers, to provide for better collaboration, or to keep the traditional workplace intact. Employers who are “hands on” and like to retain control probably would likely prefer all employees to be onsite. Employers may also be concerned about the possibility of employees floundering, experiencing isolation or restlessness, or becoming less productive as their focus may be divided between work, family, and home. Some of these concerns may be overcome with clearly defined expectations for issues that may arise. Others may be insurmountable and, as such, require onsite employees.
As employers consider all of the ramifications of offering remote work opportunities or hybrid work schedules, it’s important to recognize and address the many factors that are involved in building a long-term remote work strategy. First of all, employers must ensure compliance with federal laws and regulations. Of course, these compliance issues may be magnified by state or local laws, as employers must observe any state and local laws in which an employee resides and works. These include employment laws related to employee tax withholdings, minimum wage, payday regulations, overtime, meal and rest breaks, workers’ compensation insurance, on-call expectations, reasonable accommodations, harassment and discrimination claims, leave requirements, and employment law posters, to name a few.
Among the wage and hour considerations, employers must ensure accurate timekeeping for employees who any of their hours of work remotely. Unlike exempt employees, who are paid to get the job done no matter how many hours they have to work, nonexempt employees must be paid overtime pay for any hours over 40 that they work in a workweek. The Fair Labor Standards Act (FLSA) requires reasonable diligence in making sure nonexempt employees are paid for all hours worked. Therefore, employers must track the working hours for nonexempt employees. On the surface, this seems doable but it is harder to track work for remote employees. After all, how does the employer know the employee is only working the prescribed working hours? Is there concern that an employee may be working less hours while they take care of children or household duties? Is there concern that an employee may secretly work longer than their eight-hours in one day? What if the employer has a policy that an employee can’t work overtime without approval, and yet the employee submits a time record with forty-four hours on it? Employers should understand the nuances of federal and state wage and hour laws, in order to respond appropriately to issues that arise. In the case of unapproved overtime, an employer’s instinct may be to dock that employee’s pay. However, employers must still pay their employees for all hours worked, including unauthorized overtime. Where a nonexempt employee does not follow an employer’s policy such as overtime, the employer should utilize disciplinary action, up to and including termination of employment for not abiding by the policy instead of deducting their pay.
Employers who have remote employees must also consider multiple secondary factors, such as privacy and security needs, technological issues, communication strategies, performance management, employee relations, employee health and wellness, and benefits, to name a few.
Employers should review their employee handbook to make sure all current policies, such as performance evaluations, rest and meal periods, and leave policies are applicable for both onsite and remote employees. They should also consider adding a telecommuting policy that provides clear guidelines that include the following:
- A list of the jobs, employee classifications, and departments that may be approved for remote work, and information on whether the remote work authorization is permanent or temporary, how employees may request remote or hybrid work schedules, and the person who has final decision-making authority for remote work.
- A statement that defines whether remote work may be considered as a reasonable accommodation under the Americans with Disabilities Act and Its Amendments Act (ADAAA).
- A clause that remote employees will be subject to the state and local laws where they reside.
- A statement that discrimination against an employee who requests to work remotely is prohibited.
- Expectations for employees regarding availability and responsiveness.
- Information on specific equipment and software requirements necessary for remote employees.
- Procedures for setting up and using a remote workspace.
- Technological safety and security guidelines.
- Training requirements for new equipment and software, as needed.
Up-to-date job descriptions should also designate whether jobs are eligible for remote work, and list the responsibilities required and how performance and productivity will be measured. Some employers are also creating remote work agreements that are personalized for each employee. These agreements provide the expectations for both the employee and the employer and provide details as to locations, availability, and performance. Finally, supervisors should be trained how to manage both onsite and remote employees in a consistent manner that is applicable to the employee, their job, and the location of their work.
This article only represents a broad overview of issues employers must address if they have remote employees. For additional information on remote employees, please contact us at www.newfocushr.com.
Written By: Kathi A. Walker, SHRM-SCP, PHR
Sr. HR Consultant