The new reality: The remote workstation is here – maybe permanently! – employment and human resources

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Tips for employers to consider when managing remote workers

A recent survey by the Society of Human Resource Managers found that one of the top employment problems facing businesses today is how to best train managers to effectively manage remote workers. Closely behind the training to become a supervisor is the need for a formal, written teleworking policy. The stresses in the workplace caused by the sudden move to remote work are felt by employers, many of whom (i) did not think that remote work would be a long-term situation; and (ii) implemented only the minimum of structure necessary to support its workforce during a (then assumed short-term) pandemic. Employers are now looking for ways to attract and retain employees and reduce the hassle by letting them perform certain functions remotely – this time permanently.

This legal warning highlights considerations for employers investing in remote workforce over the long term.

I. Invest in a solid remote work policy. All employers who allow employees to work remotely, temporarily or permanently, should consider a remote working policy that addresses issues such as: B. which positions / functions can be exercised remotely; The security and location of the remote workstation; Time recording mechanisms; Employee efficiency and monitoring; Attendance records; Recreational logs; Schedule and availability expectations; Protection of confidential, trade secret and proprietary information; Use and protection of intellectual property; Protecting sensitive employee information; Confidentiality of the customer; and reimbursement of business expenses that would otherwise not be incurred if the work were performed at the employer’s normal place of business (e.g., internet access, cell phone use, computer / device use, and maintenance and supplies). In addition, companies should consider the jurisdictions in which remote workers are located. The location from which an employee performs remote work can raise new tax and legal issues for the employment relationship and the company as a whole. For example, in California, an employer is required to reimburse all reasonable and necessary business expenses. Even before the pandemic, a California appeals court found that if an employer required an employee to use their cell phone for business purposes, the employer would have to reimburse the employee for part of the bill, even if the employee was not billed additional fees for use for business purposes (whether on an indefinite plan or otherwise). California courts are expected to make the same decision when it comes to home internet bills.

II. Change administrative practices. Remote working presents unique compliance and payroll challenges. Consider adapting human resource practices and procedures for the remote workplace: Are employees paid on time according to local law? Are non-exempt employees now entitled to daily overtime and / or mandatory meal and rest times, or may employees no longer be entitled to daily overtime and / or mandatory meal and rest times? Are workers eligible for paid sick leave under applicable state and / or local laws because of their remote work? Are workers eligible for additional vacation under the laws of the city and state in which they work? Are statutory notices distributed to employees using a method that complies with federal, state, and local law? Are electronic time cards used appropriately and are all working hours recorded? Have knowledge gaps been identified and addressed regarding the remote working guidelines? When dismissing an employee, are they complying with all applicable state and local laws, including those regarding the timing of a final paycheck?

III. Offer training for HR professionals and supervisors. HR professionals and supervisors may need training on how to best deal with common workplace problems in the context of a remote worker. For example, commitment and motivation of employees, evaluation of employee performance, employee discipline, communication of deadline and availability expectations; Accommodation of disabilities; Applying codes of conduct to a remote environment, responding to internal complaints and workplace injuries all present unique problems with a remote workforce and how to help remote workers feel part of a team. Additionally, remote workers may be reluctant to raise concerns in a remote setting, which can undermine work ethic and pose compliance risks. Companies that allow part of the workforce to work remotely should consider special training for HR professionals and supervisors.

NS. Identify changes needed to protect confidential information, trade secrets, and intellectual property. When employees access sensitive information outside of an employer’s workplace and in less structured environments, the risk of unauthorized use and disclosure of not only the employer’s information but also sensitive customer information and data increases. However, many remote employees regularly access sensitive information that is not protected by measures such as passwords, dual authentication, encryption or a VPN network. Employers should consider assessing the risks involved in performing certain functions remotely and analyzing measures aimed at ensuring the confidentiality of this information.

While some states allow employers a lot of leeway in entering into restrictive trade secret and customer goodwill agreements and non-competition or post-employment solicitation agreements, other states (such as California and Colorado) may restrict or even prohibit such agreements . In these circumstances, employers should consider what alternative measures are available to protect trade secrets and customer goodwill, and revise such arrangements to suit the jurisdiction in which the employee is working remotely.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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