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Telecommuting during Covid19 and beyond

Telecommuting during Covid19 and beyond:

A Guide for Employers

Telecommuting has suddenly become a reality for many American workers, and it’s realistic to assume that shifting to the ‘home office’ will be the new normal for many of us for a while, given the World Health Organization’s designation of novel coronavirus (SARS-CoV-2) as a pandemic, and increasingly insistent calls from federal, state and local government for social distancing.

Notwithstanding the urgency of the present circumstances, telecommuting offers many benefits for businesses of all sizes, including access to a wider pool of employee talent (regardless of location), employee satisfaction and retention, and cost savings. Savvy employers will take advantage of those opportunities, while recognizing that “working from home” requires careful attention to practical, technological and legal issues in the development of an effective telecommuting policy.

Some employees will be working from home for the first time, and both employees and employers will need to ensure accountability in an environment that presents challenges to productivity, from the allure of the employee’s couch to logistical and technological requirements. In addition to managing these operational challenges, employers must comply with various statutes and regulations to successfully implement a telecommuting policy.

First Steps

As a first priority, employers must identify the roles that are critical to business operations and determine which employees can work effectively from home. This is an opportunity for business leaders to think creatively about leveraging technology to make telecommuting possible even for employees that have been traditionally regarded as necessary on-site staff. Once you have identified which employees can effectively telecommute, the next critical component is to optimize your technological resources to ensure a robust and flexible response to the needs of your remote staff, enabling them to work as effectively as they would in a traditional office.

Proactive consideration of these questions will help you successfully implement your remote work plan, avoid the pitfalls of haphazard implementation, and reap the benefits of a well-conceived telecommuting policy. To ensure the success of your telecommuting policy, here are four general aspects you, as an employer, should consider: operations, security, payroll and safety.

1. OPERATIONS

  • Eligibility: Determine which employee roles are eligible for telecommuting, and state that clearly in your employee policies and recruitment communications. If you are unable to offer telecommuting for certain positions, make that clear in your employee policies and recruitment communications, minimizing any future requests or inquiries about remote work.
  • Availability: Be clear about your expectations regarding employee availability. Whether you require your employees to be available during certain fixed hours or you let employees set their own schedules, provided relevant benchmarks are met, your policy should be as clear as possible.
  • Responsiveness: Set clear expectations for employee responsiveness to requests and communications from colleagues, clients, contractors and other key assets of your business. Be sure your remote employees know what a reasonable response time is (for example, within an hour, same day, or within 24 hours) and what methods of communication are appropriate for your business.
  • Accountability and Productivity: The best remote work policies will specify how an employee’s productivity will be measured, and set clear mechanisms for accountability. This is important not only to ensure that your employees are productive, but that they feel connected to the business and can assess whether they are performing well.
  • Equipment: Remote workers need the right tools to complete their work. Businesses should consider how to optimize their IT systems and provision of equipment to facilitate telecommuting, in order to realize the possible efficiencies of telecommuting, while avoiding the expense and inconvenience of trying to retrofit an IT system set up for a physical office. Your business should tell employees what equipment the business will provide, and what equipment the telecommuting employee is expected to have set up themselves in their home office. Internal tech support should be trained to respond to the needs of remote workers, and you should outline what remote employees are expected to do when they have technical difficulties.
  • Physical environment: To ensure the health and safety of employees, and compliance with applicable regulations, some employers prefer or require an employee’s physical environment to be approved prior to working remotely. Further guidance is below.

2. SECURITY

General Security

A good telecommuting policy will address the heightened risk of loss of valuable property when resources are deployed remotely. Your business’s assets include physical equipment, trade secrets, intellectual property, client information, market intelligence and corporate goodwill. Your employee policies and agreements should address the employee’s obligation to reasonably protect these valuable assets while working from home.

Cyber-security

Technological innovation has made it attractive for many businesses to permit certain employees to work remotely. However, this flexibility presents unique security risks, both external (from hackers) and internal (from employees themselves). In its 2019 Official Cybercrime Report, Herjavec Group, a global cybersecurity advisory firm, estimated that cybercrime would cost the global economy more than $6 trillion annually by 2021.

The risk is not limited to proprietary data belonging to the business itself, but also to personal information that a business possesses about customers and other members of the public. Security breaches that affect customer data can create legal liabilities for businesses, and significant reputational risk.

Under Texas law, businesses are required to implement and maintain reasonable procedures, including taking any appropriate corrective action, to prevent the unlawful use or disclosure of any sensitive personal information collected or maintained by the business.

In the event of a security breach, businesses are required to disclose the breach to any person whose personal information was compromised by the cyber-attack, as well as to relevant regulatory bodies, generally within 60 days. Accordingly, businesses should carefully draft policies and protocols to identify systemic vulnerability and potential threats, both to prevent security breaches, and to promptly detect, cure and respond to damage caused by a cyber-attack.

Businesses should identify especially vulnerable points in their cyber-security in a remote working environment, including accessing unsecured wifi networks on personal devices. Your telecommuting plan should incorporate both policies and practical solutions. Some safeguards are technical, such as two-factor authentication or proxy-only (VPN) access to networks. Other preventative measures are policy driven, and might include safeguards to protect sensitive business or client information if an employee resigns or is terminated, like requiring information and documents to be accessed only in the “cloud” (where access can be restricted), prohibiting transfer of data between business and personal devices, requiring regular in-office “security checks” to update software, and identify any malware or other security risks.

A proactive telecommuting policy will be a seemless collaboration between your technology experts, human resources, and management (in consultation with legal advisors) to ensure a multi-faceted approach to unifying company strategy with employee expectations, and providing the technical tools to enable policies to be effectively implemented and monitored.

3. PAYROLL

Monitoring the time worked by employees is essential for businesses when deciding how to effectively implement telecommuting. It’s important that company managers are trained to monitor the schedules of remote employees to avoid unapproved overtime or other wage and hour issues. Multiple employment laws, such as the Americans with Disabilities Act (ADA) and the Fair Labor Standards Act (FLSA), apply to employers even when employees are working remotely.

The following questions and answers focus on legal compliance specifically regarding wage and hours.

• What is the FLSA? What is its significance in telecommuting policies?The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek. These regulations are relevant for remote working because they apply to any relevant worksite, including a home office.

• Must companies keep paying employees who are not working?

In most cases, no. Unless the federal government enacts specific measures to provide relief to non-exempt employees who cannot work during the Covid-19 pandemic, FLSA minimum-wage and overtime requirements apply to hours worked in a workweek, so employees who are not working are typically not entitled to the wages the FLSA requires, and the amount employees should receive cannot be determined without knowing the number of hours worked. The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace, which can include a home office

• What is “work time,” or “hours worked,” for the purposes of FLSA?

By statutory definition, the term “employ” means “to suffer or permit to work.” This means that if an employer requires or permits an employee to work, the time is compensable, even if the employer designates some tasks as “voluntary”. The workweek ordinarily includes all time during which an employee is required to be on the employer’s premises, on duty or at a prescribed work place, which includes a home office or remote workplace.

• How many hours per day or per week can an employee work?

An employee and an employer can freely contract with each other to fix a number of hours per day or per week that the employee aged 16 or older can be required to work. Similarly, extra pay for working weekends or nights is also a matter of agreement between the employer and the employee. The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, non-exempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.

• Are there any recordkeeping requirements under FLSA for telecommuting?

Yes. Under FLSA, covered employers must keep certain records for each non-exempt worker, and the rules explicitly apply to work performed away from the premises or the job site, even at home, and requires employers to count the time as hours worked if the employer knows or has reason to believe that the work is being performed .

In practice, while FLSA requires no particular form for the records, the Act does require that the records include certain identifying information about the employee and accurate data about the hours worked and the wages earned. The following is a list of the basic records that an employer must maintain:

  1. Employee’s full name and social security number
  2. Address, including zip code
  3. Birth date, if younger than 19
  4. Sex and occupation
  5. Time and day of week when employee’s workweek begins
  6. Hours worked each day
  7. Total hours worked each workweek
  8. Basis on which employee’s wages are paid (e.g., “$9 per hour”, “$440 a week”, “piecework”)
  9. Regular hourly pay rate
  10. Total daily or weekly straight-time earnings
  11. Total overtime earnings for the workweek
  12. All additions to or deductions from the employee’s wages
  13. Total wages paid each pay period
  14. Date of payment and the pay period covered by the payment

Are employers required to pay the hours worked by an off-duty employee?

In most cases, yes. An employee’s failure to ask permission to work off-duty is no defense for an employer for the purposes of FLSA. Failure to ask might conceivably be relevant to the question of whether an employer knew or had reason to believe an employee was performing off-duty work, but even then failure to ask would be only one factor. Empirically, it is rare that an employer will be found to lack the requisite knowledge when the activities in question are typically part of an employee’s job, unless the employee has deliberately hidden the fact that s/he is performing them.

In order to minimize unexpected overtime wages and to strictly comply with FLSA recordkeeping requirements, employers with telecommuters should establish mechanisms to track employee hours and to ensure their accuracy, in the absence of an in-person supervisor to monitor the employee’s working hours. Employers should also encourage an open line of communication between supervisors and telecommuting employees—even if using an electronic system to track hours worked. These procedure for documenting hours worked, and complying with the employer’s policies should be incorporated into the employee agreement and the business policy regarding telecommuting. These documents should set out the framework for the telecommuting assignment, the number of hours expected to be worked each day or week, how hours are to be recorded, and emphasize, if appropriate, that non-exempt employees are prohibited from working off-the-clock without authorization.

4. SAFETY

If employees are injured on the job, even if they were not in the office, the employer could still face legal consequences. According to the Occupational Safety and Health Administration (OSHA), businesses are obligated to provide employees a safe work environment, which includes a safe remote environment. OSHA’s directive on Home-Based Worksites encourages employers to permit telecommuting. “Family-friendly, flexible and fair work arrangements, including telecommuting, can benefit individual employees and their families, employers and society as a whole.”

Merely because an employee does not work in the office, an employer is not relieved of his obligation to take reasonable steps to ensure employees’ health and safety. OSHA states, “Employers are responsible in home-worksites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home.” An employer can only be liable for hazardous working conditions in a home working environment that the employer creates or fails to prevent in the home office. OSHA notes that some tasks are inherently dangerous, and unsuitable to a home environment, including most industrial processes (for example, assembly of electronics).

Before permitting employees to work from home, an employer should take reasonable steps to determine remote workers’ environments are suitable for their specific job, and don’t pose any undue risk.

To minimize potential liability and legal risks, it is best practice for employers to require telecommuters to complete a home safety survey, which should require employees to ensure homeowners’ or renters’ insurance is current, adequate lighting, ventilation, fire extinguishers, smoke detectors, along with an ergonomic chair and desk. Further, employers should ask employees to ensure exposed extension cords, phone lines, or other hazards are remediated. Ideally, the employee should designate a separate room for exclusive use as an office, and document the workspace with pictures and a video. These best practices are not required to ensure compliance with OSHA requirements, but are intended to ensure that the employee actually has a safe environment in which to work, which protects both the employer from potential liability, and the employee from unforeseen risks in their home environment.

CONCLUSION

The emergence of novel coronavirus presents a great challenge to all of us, in the context of all our relationships, including our working relationships. The best way to overcome those challenges is to recognize them as opportunities to consider different ways of working that, if properly implemented, may improve efficiency, while providing valuable flexibility and care to any employer’s most valuable assets: its employees.

Author of this article:
Earvin Chionglo, Ethan Zhang, Maureen Farrell, Fan Chen
Contact Information:
Fan Chen
fchen@nguyen-chen.com
Maureen Farrell
mfarrell@nguyen-chen.com
Ethan Zhang
rzhang20@lawmail.mercer.edu
Earvin Chionglo
echionglo@nguyen-chen.com

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