FAQs for a Brave New World: Employers Grapple with the Legal Implications of Telecommuting

By Hillary S. Zilz and Christopher R. Dyess

The COVID-19 pandemic has upended the way that we all live and work. With mandatory shelter in place orders across the country, employers have been forced to allow their employees to work from home. And with the possibility of employees being put on staggered work schedules to comply with social distancing safety rules, telecommuting may become part of our new reality going forward.

While most employers are already equipped with the necessary technology to allow employees to fulfill their work duties at home, telecommuting presents unique legal challenges to employers. As employment counselors, we put together a list of the frequently asked questions (“FAQ”) we are getting from our clients and provide some preliminary guidance for employers.

Allowing employees to telecommute raises a host of legal and practical issues for employers. With these FAQs we address some of the more common topics such as (1) the need for a telecommuting policy; (2) how to reduce the risk of discrimination claims related to telecommuting; (3) remaining compliant with wage and hour laws; (4) monitoring employees and employee privacy rights; and (5) employer responsibilities for workplace safety.

Please note that this FAQ is meant only to provide general guidance. As with many employment law-related topics, many situations facing employers are fact-specific and nuanced. These FAQs are not meant to address every situation and jurisdiction-specific guidance is required before employers take specific actions. Thus, we encourage employers to seek out counsel for advice on specific situations.

Frequently Asked Questions

1. Do I need a telework policy for my employees?

Yes. An effective telework policy will minimize your risk of liability by setting clear expectations about employee responsibilities when telecommuting. An effective telecommuting policy should include the following:

1. Guidelines regarding which employees are eligible to telecommute;
2. A specific procedure for employees to request the ability to telecommute;
3. Confirmation that the employer intends to comply with the Americans with Disabilities Act by granting reasonable accommodations to the telecommuting policy;
4. Clear and specific guidance regarding the employer’s expectations for employee telecommuting including

(1) work hours;
(2) recording of work hours (for non-exempt employees);
(3) guidance regarding the use of employer-provided telecommuting equipment;
(4) reimbursement procedures for work-related expenses incurred while telecommuting;
(5) procedures for secure remote access to employer systems necessary for remote working and the requirement to only use that secure access when engaged in work activities;
(6) employee access to technical support; and
(7) any other relevant employer/employee responsibilities.

Specific guidance regarding the employee’s job duties including break times and work area to reduce the risk of liability for workplace injuries; and
A reminder that all employees—regardless of work location—are required to comply with all employer policies. For example, employees should be reminded of their confidentiality duties and to save company data only on the network, not personal devices, and not to send sensitive corporate data to personal email or cloud accounts.

Moreover, you should distribute a copy of your telecommuting policy to all employees and/or include it in the employee handbook. Like all employment policies, it is important for employers to apply the telecommuting policy in a fair, consistent and non-discriminatory manner to avoid exposure to claims of employment discrimination. Also, be aware that the employer may be required to make certain exceptions as a reasonable accommodation under the Americans with Disabilities Act. In some circumstances the employer may consider entering into a separate formal telecommuting agreement with employees that will work remotely, which outlines the employer’s telecommuting guidelines.

2. Could I be subject to liability for discrimination claims based on decisions to allow employees to work remotely?

Yes. The most effective way to reduce the risk of discrimination claims regarding telecommuting decisions is to have a written policy that clearly communicates the types of employees who are eligible to participate in the program and grant or deny requests consistent with your policy. It is also good practice to formalize the process by requiring employees to submit written requests for remote work to the appropriate designated party (e.g., managers and/or human resource personnel).

3. How do I remain compliant with wage and hour laws for employees who are working remotely?

Regardless of where your employees are working, it is your responsibility to ensure compliance with wage and hour laws. The Fair Labor Standards Act (“FLSA”) is the primary federal law governing wage and hour laws. The FLSA outlines employer requirements regarding overtime pay, minimum wage, exempt vs. non-exempt employee classification and record keeping. 29 U.S.C. §§ 206(a) and 207(a); 29 C.F.R. § 516.2(a) and (c); 29 C.F.R. § 516.3. State law may impose higher minimum wage than federal law. Consult with counsel if you need guidance.

As the employer, you must ensure that all non-exempt employees are paid for all hours worked. If you do not want employees performing certain work from home, specifically prohibit employees from performing such work, in writing. If an employee does perform unwanted work after being instructed not to do so, discipline the employee appropriately, but still pay the employee for the hours worked.

Employers should also adopt specific time keeping policies for non-exempt employees who work remotely to ensure payment of overtime, if required. Employers should incorporate such policies into the telecommuting policy and specify how remote employees should record their work hours and prohibit off the clock work.

Employers should also be aware that in addition to the FLSA, the employer must ensure compliance with state wage and hour laws, which are often more expansive than the FLSA.

4. What wage and hour considerations should I be aware of if I have to temporarily
reduce employee salaries?

Employers who temporarily reduce exempt employee salaries, should ensure compliance with the FLSA. If an exempt employee’s salary is reduced below the FLSA salary test guideline, the employee may now be non-exempt triggering minimum wage requirements and overtime pay for any hours worked in excess of 40 in a work week. In 2019, the Department of Labor announced an increase the salary threshold for exempt employees. As of January 1, 2020, the new the salary threshold under the FLSA for exempt employees is $684 per week or the equivalent of $35,568 per year. Please note that your state may a higher salary test threshold for exempt employees.

5. Do I still have to comply with posting workplace rights under various employment laws for remote workers?

Yes. Employers should ensure that employees working remotely are notified of their rights under federal employment statutes, which often require notice by physical display of posters. If remote employees still come into the office occasionally, post the required notices in areas frequently visited by employees. Employers can also email remote employees such policies or make them available on the company intranet or website. Finally, employers may send such notices directly to employees through the mail.

6. What if my employee gets injured at home?

Workers’ compensation is trickier when employees work from home. While the compensability of claims still turns on whether the injury was sustained (1) during the employee’s regular work hours and (2) while the employee was actually performing her employment duties, the lines are blurrier when employees pepper their day with home exercise regiments and walking their dog. This is another reason employers should have a clear policy that demarcates what hours and activities are in furtherance of employer’s business and in the course of her duties.

Items to clearly define in the policy include work hours, with possible clocking in and out for breaks, employment duties and a list of equipment (e.g., computers, furniture) that will be covered by the employer. In recent decisions at least one Workers’ Compensation Board left open the possibility that an employee may be compensated for an injury sustained while assembling office furniture at home if the employer purchased or directed the employee to purchase the furniture for home office use. We further recommend, since often there are no witnesses to injuries sustained at home, that employers promptly direct an employee who claims injury to provide in writing a detailed recitation of the time, place and circumstances surrounding the incident.

7. How do I monitor remote employee work performance without violating privacy laws?

Monitoring employee work performance is a critical aspect of ensuring that the employer’s business objectives are achieved when employees telecommute. However, monitoring remote employees’ performance can be especially challenging because the employer is unable to observe the employee working. Employers can keep track of employee performance by regularly communicating with the employee during working hours via phone, email and video conferencing.

Employers who use task-monitoring software can also monitor employees by reviewing their emails, seeing how often and for how long employees are using the internet for non-work purposes, tracking employee key strokes and monitoring VPN login activity. However, these more intrusive methods of monitoring remote employees can present privacy challenges where employees use their own personal equipment. Employers who intend to use task-monitoring software should clearly communicate to employees that they have no expectation of privacy when using employer-provided email or equipment.