The majority of employers in our country had their normal operations dramatically impacted by the COVID-19 pandemic this year. Every workplace was affected in a multitude of ways – one of the largest sudden adjustments was the increase in employees having to work remotely from home. If your employees have been working from home, there are some concerns to take into consideration.
For some employers, this was nothing new as they may have already embraced telecommuting for their staff. But, for many other employers the idea came on as a difficult logistical endeavor with new procedures and methods to put into effect. Employees working from home can raise a host of legal implications.
Security Measures and Privacy Concerns
Companies with more employees working remotely increases the possibility of data breaches that could result in legal trouble. It is important to have written work-from-home policies in place with clear protocols for accessing and transmitting confidential business information. Employers need to make sure each worker’s remote access to company resources is secure with strong passwords, verification protocols, firewalls, antivirus software, data encryption, and other security technology. Employees working remotely are likely using their own internet connection or Wi-Fi at home, or using public Wi-Fi signals at area locations. It is very important to have security protocols in place about the types of information each worker can access or transmit.
Hour and Wage Laws
The Federal Fair Labor Standards Act (FLSA) states that any “non-exempt” employee – which is an hourly wage worker with no managerial or discretionary decision-making responsibilities, or a salaried administrator, manager or professional who makes less than $684 per week – is entitled to overtime pay at 1.5 times their regular rate. Compliance can be a challenge with the FLSA within a remote working environment in which work and home gets blurred.
It is necessary to create a method for tracking the number of hours employees are actually working, and when they are on or off the clock. It’s critical to remember that the FLSA applies in both traditional and remote work settings, and that if there are not strong systems in place to monitor and record what your workers are doing, you could run afoul of the FLSA and find yourself subject to an enforcement action or an employment related lawsuit.
The 2019-2020 federal minimum wage is $7.25 per hour, but each state has its own minimum wage laws and some states’ minimum wages are higher. If you have employees who live in multiple states commuting to the same physical workplace (for example, a St. Louis company with workers living in Missouri and Illinois or a Boston business with employees who live in Massachusetts, Rhode Island, New Hampshire or even Maine), then you are subject to the wage and hour laws of the state where your business is located. When you have employees working from home, this can complicate things. If a non-exempt employee is working from home in a state with a higher minimum wage, a court could decide that they are entitled to earn that rate. An attorney who practices business law or employment law can help you navigate the legal ramifications in these situations.
While the coronavirus pandemic has led to remote work by necessity, as the virus becomes mitigated in areas – many workers may opt to return to working in the physical location of their employer’s business or workplace. Some business owners may decide to continue to allow a certain degree of working at home as a privilege for some of their employees. In these cases, it is critical that those granted the eligibility to work-from-home are considered using neutral factors such as their job responsibilities, past performance, or seniority – because these requirements can be applied fairly and consistently. It is equally critical that remote employees be subject to the same rules and expectations as any other workers. Failure to do so could potentially lead to an employment discrimination suit if an aggrieved worker can somehow tie unequal treatment to his or her race, sex, religion, ethnicity, or disability.
Similarly, employers need to make sure there is a clear written policy in place regarding the use of electronic communications such as email or text. It is very easy for workers to treat these mediums as informal communication tools and may let their professional guard down, creating a greater risk of accidental inappropriate comments that could be interpreted as sexual or racial harassment.
All employers need to maintain all considerations for the health and safety of their employees and their workspaces for Occupational Safety and Health Administration (OSHA) compliance purposes. Even work-at-home injuries could also possibly result in workers’ comp claims. An employment law and business law attorney can help you understand and to be prepared for these and other legal issues.
At The Floyd Law Firm PC, our firm is committed to helping large and small business owners navigate the laws and regulations in order to make informed decisions if any employee disputes may arise. Over the years, we have developed ongoing relationships with many of the business owners who have come to us for assistance with individual legal concerns.