In the west Texas city of El Paso, I fell in love with the work of New Mexico: applying home state laws to remote work. – Employment and staff

March 12, 2022 marks the second anniversary of the National Basketball Association’s first cancellation of games due to COVID-19. In the two years since, there have been waves of COVID. Just last year, President Joe Biden gave an Independence Day speech in which he said, “Thanks to our heroic vaccine efforts, we have gained the upper hand against this virus. We can live our lives, our kids can go back to school, our economy is roaring back.” However, shortly after the president delivered his speech, the Delta variant began to rise, and other countries reinstated their lockdowns. The surge was so significant that the government released statements saying there would be no second lockdown no matter what.

Due to the volatile nature of the situation, companies have vacillated on remote work policies. On March 2nd, Google announced that its California locations would return to the office on April 4th. However, other companies, including Amazon and Deloitte, have positions that are completely removed. Of course, some companies have a semi-work-from-home model, where employees rotate between the office and working from home.

El Paso businesses reside in a tri-state, bi-national community and have employees who live and work in different states. A drive from downtown El Paso to New Mexico can take about 15 minutes. Accordingly, employers keep asking: “Which law applies?” There are different scenarios, but the main ones that employers usually encounter are:

1. An employee’s position is completely removed;




2. An employee’s position was only removed in response to the pandemic, but the employer plans to return to the office; and




3. An employee has a hybrid schedule where they work from home some days but come to work other days.

The law does not give a clear answer. However, it does offer some guidance on how to deal with the unique situation employers can find themselves in.

Unfortunately, Texas law is limited on this issue, but a pre-Covid case in federal court helps shed light on what laws apply in such a situation. In Rinsky v Cushman & Wakefield, Inc., an employee sued his previous employer for age discrimination and disability. 918 F.3d 8, 12 (1st circle 2019). The employee originally worked in New York for 27 years but then moved to Massachusetts and began teleworking from his home in Massachusetts. A few weeks after the plaintiff employee started teleworking, his employer fired him. One of the reasons given by the employer for terminating the employee was that he failed to complete the proper transfer paperwork at the office. In determining applicable law, the court noted that “the question is whether the effects of an allegedly discriminatory decision were felt in New York City.” Teleworking also does not preclude a state’s anti-discrimination laws. After the plaintiff analyzed that the plaintiff had worked in New York for so long, the court ruled that the plaintiff could assert a state legal claim. However, the district court did not list any other specific factors it might look for. However, the First Circuit noted that it wanted to avoid the “harassment of misleading or lulling employees into working remotely from outside of New York City before being fired.” In addition, the First Circuit cited a New York case in which an employee could not benefit from New York laws if the employee worked in an Atlanta office and only had occasional personal visits to the New York office.

Accordingly, even in the pre-Covid era, the First Circuit explored the difficult analysis of whether an employee could fall back on more employee-friendly laws when an employee is working remotely. Therefore, an employer must consider a number of factors when adopting a home working policy:

• Does the employee work in another federal state?




• Is remote work permanent?




• How much contact would the employee have with the home office?




• Where are personnel decisions made?




• How long has the employee been with the company?




• Does the company keep current records of an employee’s work location?

Overall, however, there is a surefire way to ensure there is no confusion regarding remote work policies, employment contracts, and choice of law provisions. Each state is different as to whether it would enforce a choice of law provision. For example, a court in Texas will consider the following factors to determine whether a choice of law provision is applicable: (1) whether Texas has a more significant relationship to the parties and the transaction than the selected state; (2) whether Texas has a significantly greater interest than the elected state; and (3) the fundamental policies of Texas would be violated by the application of the law of the selected states¹. New Mexico generally adheres to a choice-of-law provision unless it violates public policy². Therefore, when an employer offers a choice-of-law policy, it should consider the above factors, and border companies can protect themselves more fully by requiring workers to sign a choice-of-law agreement before instituting a teleworking policy.

footnotes

1. TransPerfect Translations, Inc. v Leslie, 594 F.Supp. 2d 742, 748 (SD Tex. 2009)

2. Flemma v Halliburton Energy Serv., Inc.303 p.3d 814, 819 (NM 2013).)

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.