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Remote Worker FAQs: How to Comply with Employment Laws

With technology connecting more workers across geographic boundaries, many employees are performing work away from the traditional worksite. When an employee works remotely, it can become difficult to track overtime, meet various notice requirements, ensure they're taking designated breaks, and manage other workplace issues. Here are answers to some frequently asked questions about remote workers.

Q: If my company is in one state but my remote workers are in another, which state's laws apply?

A: Generally it depends on how the law defines covered employers and employees. In many cases, such as minimum wage requirements, it's the jurisdiction in which employees perform the work. If more than one law covers the worker, generally the law more generous to the employee would apply. For example, if an employee is covered by both a state and local minimum wage, the higher minimum wage would apply. Consider consulting legal counsel to determine which laws apply.

Q: How do I keep accurate time records for my remote workers and prevent them from working unauthorized overtime?

A: Implement an effective process for recording work hours of all employees, including remote workers, such as an electronic timekeeping system that workers can access via a computer or mobile device. Also, develop policies that require employees to record all hours worked and expressly prohibit off-the-clock work. To help prevent unauthorized overtime, consider a policy that requires employees to obtain permission before working overtime. While employers may discipline employees for violating such a policy, they may never withhold overtime pay.

Q: Does my company have to provide rest and meal periods to remote workers?

A: Some states require employers to provide rest or meal periods to employees. If you're covered by one of these laws, then you must provide these breaks to all non-exempt employees, including remote workers. Implement clearly defined policies and practices to ensure that remote workers are informed about and take required breaks. It's a best practice to require employees to punch out for unpaid meal periods. This can help ensure that employees are paid for missed lunch breaks and account for times when employees return from lunch late.

Keep in mind that under the federal Fair Labor Standards Act (FLSA), rest breaks of 20 minutes or less must be paid. Additionally, for a meal period to be unpaid, it must generally be at least 30 minutes without interruption and the employee must be fully relieved of all duties for the purpose of eating regular meals (some states have additional requirements). Therefore, if the employee's meal is interrupted (including requiring the employee to be available to work if needed during their meal period), the employee should either be paid for the full meal period or be allowed to continue their meal period for a full 30 minutes following the interruption. Instruct remote employees to report interrupted lunch breaks so that they can be paid accordingly.

Q: Can I apply sexual harassment and other policies to remote workers as I do regular employees?

A: Yes, you can apply the same policies to regular and remote employees, including but not limited to those relating to harassment, the use of electronic communication systems, and protecting sensitive or confidential business data. Before an employee begins working remotely, make sure they have read and acknowledged company policies and remind them that they are required to abide by them.

Q: How can I provide required employee notices to remote workers?

A: Various federal, state, and local laws require employers to provide certain notices regarding employees' rights and responsibilities. For remote workers, employers typically can satisfy these requirements by distributing hard copies or electronic versions of the required notices. But, check your applicable laws to ensure compliance. Some notices must be furnished in a certain size and format or in additional languages. Make sure that these conditions are met for remote workers as well.

Q: To ease the burden of distributing paychecks to employees who work remotely, can I require them to use direct deposit for their pay?

A: In most states, direct deposit is generally permitted only if the employee voluntarily authorizes it. In the absence of a restriction, employers should evaluate the pros and cons of requiring direct deposit. Additionally, consider whether a mandatory direct deposit policy would disproportionately exclude members of a protected class, and if so, offer other options for the receipt of wages.

Q: Are remote workers entitled to workers' compensation if they are injured while working from home?

A: 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, they will generally be eligible for workers' compensation benefits. While state laws differ about what is considered a work-related injury, it's a good idea to define the remote employee's normal working hours and job duties in advance. This may help the employer when evaluating whether claims are truly work-related.

Q: Do I have to pay for remote workers' Internet access?

A: Some states expressly require employers to reimburse employees for any reasonable business expenses they incur, such as Internet access from a home office. Absent such a requirement, expense reimbursement may be necessary to satisfy the FLSA minimum wage and overtime requirements for non-exempt employees. In most cases, under the FLSA, any work-related expense incurred by an employee that would bring their pay below the minimum wage (or cut into overtime pay) must be reimbursed. Regardless of your requirements, it's a best practice to reimburse all employees for any reasonable business expenses. Where the expense may be used for work and personal use (such as having an Internet connection), consider 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.

Make sure you also have policies and controls in place to ensure that employees use a secure connection to the Internet, protect company and client data, and comply with privacy laws when working remotely.

Q: An employee who works from home asked me to provide a reasonable accommodation for their disability. Am I required to do so?

A: Under the Americans with Disabilities Act and many state laws, employers must provide reasonable accommodations to qualified applicants and employees with a disability, unless doing so would cause undue hardship. Some laws require accommodations in additional circumstances, such as when an employee has a pregnancy-related condition. A reasonable accommodation is a change in the work environment or in the way work is customarily done that enables an individual to perform the essential functions of the job and enjoy equal employment opportunities. The requirements to provide a reasonable accommodation generally apply to remote employees as well. To meet these requirements, employers may need to make adjustments to equipment or how work is done for employees who work remotely.

If an employee asks for an accommodation, promptly begin a dialogue with them to identify what, if any, reasonable accommodation should be provided. Limit the conversation to the nature of the issue generating the request, the individual's functional limitations, and alternative accommodations that may be effective in meeting the individual's needs.

Note: Allowing an employee to work remotely may be considered a reasonable accommodation in itself if, among other reasons, an employee is unable to travel to and from work because of a disability.

Conclusion:

When you have remote workers, complying with employment laws may require additional planning. Make sure you have effective policies, practices, and procedures in place before permitting employees to work remotely. Additionally, ensure that the option to work remotely is offered consistently (to similarly situated employees and to the extent that job duties are conducive to it).

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