Technology has allowed a growing number of employees to work away from the traditional worksite. When an employee works remotely, employers may have questions about how to comply with employment laws, such as notice requirements, recordkeeping, break periods, and workers’ compensation.
The following are employment considerations when you have employees who work away from the office or company facility:
Employee handbooks:
Although certain written policies may be required, employers are not generally required to have an employee handbook. However, if you do, it should be provided to remote workers, in either hard copy or electronic form. Employers should emphasize that the company’s policies also apply to remote workers, especially those related to the use of electronic communication systems and protecting sensitive or confidential business data.
Notices:
Employers must provide their employees with federal, state, and local notices regarding rights and responsibilities under certain employment laws. For remote workers, employers may generally satisfy these requirements by distributing hard copies or electronic versions of the required notices. If providing electronic copies, use a system that the company customarily uses for notifying employees about the terms and conditions of employment. Additionally, notices should be displayed at any office location to which remote employees report. Note: Some notices must be furnished in a certain size or in additional languages, so make sure that these conditions are met for remote workers as well.
Recordkeeping:
Employers are generally required to complete and retain certain employee records, including records related to pay, certain leaves of absence, and health and safety. These requirements apply to all employees, including remote workers. For example, the Occupational Safety and Health Administration (OSHA) regulations require many employers to keep records of work-related injuries and illnesses using the OSHA 300 Log. Covered employers are responsible for keeping these records for remote workers as well and should require remote workers to report all work-related injuries and illnesses promptly to the company.
Rest and meal periods:
Some states require employers to provide rest or meal periods to certain employees. If your state requires rest and/or meal periods, you must provide them to non-exempt remote workers as well. Employers should have clearly defined policies regarding rest and meal period requirements to ensure that remote workers are informed about and take their allotted meal and break periods.
Timekeeping:
Employers must keep accurate and complete records of time worked. Because of this, employers should implement an effective process for recording work hours of all employees, including remote workers. To do so, many employers have moved to electronic timekeeping systems that workers can access via a computer or mobile device. Employers should also consider policies and controls that require employees to record all hours worked and expressly prohibit off-the-clock work.
Safety:
Generally, OSHA does not expect employers to inspect employees’ home offices. This policy applies to employees performing standard office work (filing, keyboarding, computer research, email) at home. However, the agency has conducted inspections and held employers responsible for other types of work, such as home-based manufacturing; assembly of electronics; and handling chemicals. In situations like these, employers are responsible for safety and health hazards caused by materials, equipment, or work processes that the employer provides or requires use of in an employee's home. Even if employers are not subject to these requirements, it is a best practice to promote safety among home-based workers.
Workers' compensation:
Under most circumstances, every state (except Texas) requires employers to have workers’ compensation coverage for employees. If a remote worker is injured in the course of work-related activities, he or she will generally be eligible for workers’ compensation benefits. While state laws differ about what is considered a work-related injury, it is a good idea to define the employee’s normal working hours and job duties. This may help the employer when addressing claims that are not truly work-related.
Expense reimbursement:
While employers should generally reimburse employees for reasonable business-related expenses, tracking business expenses for remote workers can be more challenging. Employers should clearly define in a written policy which expenses will be reimbursed. Where the expense, such as having an Internet connection, may be used for work and personal use, employers should develop a system to help employees monitor and record how much of the cost is related to conducting business activities, and reimburse employees at least that amount.
Travel to the office:
If non-exempt employees normally work from home, any time they spend traveling to and from the employer’s premises is generally considered compensable work time. For example, if an employer requires remote workers to come to the office for a meeting, or to pick up work periodically, these employees would be entitled to pay for the time spent traveling to and from the office.
Reasonable accommodations:
The requirements under the Americans with Disabilities Act (ADA) and many state laws to provide reasonable accommodations for applicants and employees with disabilities also apply to remote workers. To meet these requirements, employers may need to make adjustments to equipment or how work is done for employees who work remotely. Note: Allowing an employee to work remotely may be considered a reasonable accommodation in itself if an employee is unable to travel to and from work because of a disability.
Out-of-state remote workers:
When an employer is in one state and the remote worker is in another, compliance with various state employment and tax laws can be complicated. In such cases, employers should consult with legal counsel and a tax advisor to determine which laws apply to the remote worker. Generally, where federal, state, and local laws conflict, the law that is more generous to the employee applies.
Independent contractors:
Employers cannot classify an individual as an independent contractor merely because he or she works remotely. Workers must satisfy very narrow federal and state tests to be classified as independent contractors. Along with examining other facets of the relationship, these tests look at the level of control the business has over the worker.
Conclusion:
When you have remote workers, complying with employment laws may require additional planning. It is important to have effective policies, practices, and procedures in place before permitting employees to work remotely.