Obligations Don’t Vanish Because Employees Are Working at Home
Managing Hybrid or Remote Workers
By John S. Gannon, Esq.
Prior to the COVID-19 pandemic, working remotely and other flexible work models like hybrid schedules were fairly uncommon. Now, allowing employees to work remotely at least a few days a week has become the norm for jobs that can be done from home.
One research summary suggested that 74% of U.S. companies are using, or plan to implement, a permanent hybrid work model in 2023, and 55% of employees want to work remotely at least three days a week. With remote work becoming more and more common, businesses need to be aware of employment-related legal issues that can bubble up when employees are working from home (and probably in their pajamas).
Wage and Hour Issues
One of the biggest challenges for businesses with teleworkers is compliance with wage and hour laws, which are laws that govern issues like payment of wages and meal breaks. Federal and state laws can differ considerably on these topics.
For example, federal law, and many state-law equivalents, do not require that an employer provide employees with meal breaks. Here in Massachusetts; however, state law requires employers to provide a 30-minute unpaid meal break to those who work more than six hours in a work day. In New Hampshire, workers are required to get a meal break after working five hours, unless it’s feasible to eat while working. Massachusetts does not have this ‘feasibility’ exception to its meal-break statute.
“With remote work becoming more and more common, businesses need to be aware of employment-related legal issues that can bubble up when employees are working from home.”
Similarly, some states (including Massachusetts) require the payout of accrued, unused vacation time upon separation from employment. Most states do not have this requirement. Other states require employers to reimburse employees for home-related business expenses, such as a laptop, upgrading home internet, or phone service.
Although this is type of reimbursement is technically not required in Massachusetts, the state attorney general’s office has suggested that employers should reimburse expenses that are “unavoidable and necessary” (whatever that means). Bottom line, businesses need to be familiar with the wage and hour laws of each state where employees live if remote work is allowed.
One wage and hour issue that does not vary from state to state is the requirement to pay non-exempt workers for all hours worked. This can be a problem with remote workers, regardless of where they live. Consider an hourly employee who answers a few emails from home during non-core working hours. This is working time, even if the employee has signed out for the day.
Employers need to have policies and practice in place to make sure all working time at home is recorded and paid for. Otherwise, they might be looking at a costly failure-to-pay-wages lawsuit.
Family and Medical Leave Laws
Similar to wage and hour laws, employee family and medical leave entitlements can vary considerably from state to state. As readers are likely aware, in Massachusetts, employees are allowed to take up to 20 weeks of paid leave per year to care for their own medical condition. Full-time employees also earn an additional 40 hours of sick time to use during the year. Employees working from home who live outside of Massachusetts may not be entitled to this leave. However, if they live in Connecticut or New York, they would be entitled to paid medical leave and sick time required by their home state’s laws. Because this issue can be confusing for employees, leave entitlements absolutely need to be addressed in your company handbook and/or policy and procedure manual.
Poster and Notice Requirements
Numerous labor and employment laws, including wage and hour laws and family and medical leave laws, require employers to put a poster up in the workplace and provide informational notices to employees in places like a handbook. This obligation does not vanish when employees are working from home. If employees rarely visit the office, the required postings need to be distributed via email or posted on an employee-accessible intranet.
Health and Safety Requirements
Even for remote employees, businesses must ensure a safe and secure working environment. This means identifying risks and hazards associated with working in the home and requiring employees to report any work-related injuries or incidents. Even employees working from home are entitled to workers’ compensation for job-related injuries.
Consider an Employment-practices Audit
An employment-practices audit is a complete risk-and-liability assessment of your human-resources and compliance operations. Audits are a cost-effective way for employers to confirm that they are meeting their legal requirements under federal, state, and local laws and regulations. Employers with a hybrid or remote workforce should consider engaging labor and employment counsel to conduct an employment-practices audit to detect and fix any of the problems identified in this article (and more).
John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected]