Telecommuting in the Post-Pandemic Age and Legal Considerations
Consider the following:
- Does your public entity have a workforce that is at least partially remote?
- Do you know where they’re working from at all times? Should you?
- Who is paying/paid for the employee’s home office equipment, phone, and internet?
- Are employers responsible when an employee suffers an injury during working hours while the employee is working remotely? Is the answer the same if the injury was a trip-over-and-fall because Jack-the-Cat leaped out of the kitchen cupboard?
If you don’t know how to answer the questions above, this blog may pique your interest.
In today’s workplaces, more and more employees see remote work as perhaps the only silver lining coming out of our shut-in, pandemic days. Are you prepared to address remote work in a holistic way, not just on the emergency, ad-hoc basis you were forced into during COVID-19? Likewise, are you prepared to take an eyes-wide-open view of remote work so that your local government can realize the benefits of remote work without creating excessive legal liabilities?
This blog explores special considerations for public employers with any telecommuting workers. Each one of the below topics could be the subject of its own article so our goal here is not to provide an opus on each consideration. Rather, our hope is to help you flag the issues your organization should be thinking about as we move into the brave, new remote work world.
As with all areas of employee management, a touchstone of managing remote work should be offering similar treatment to all your workers regardless of their physical location. In addition, here is a list of best practices:
- Be intentional about involving remote workers.
- Set and communicate expectations.
- Focus on outcomes rather than activities and desk time.
- Train your brain to remember remote workers.
- Always consider how remote workers will be integrated into activities and opportunities for growth.
- Ensure access to the same resources and supports.
- Do not alter standards for performance.
Telecommuting Policies and Worker Agreements
For public entities that either already permit remote work or intend to permit remote work arrangements in the future, we recommend you adopt an umbrella policy addressing different facets of remote work.
The policy should address issues such as eligibility to be considered for remote work, data security and public records, working time and overtime, worksite designation, equipment, and supplies. With a neutrally written and implemented policy, workers interested in telecommuting should be asked to sign agreements formalizing the arrangement rather than allowing casual remote work. Memorializing approval and documenting the agency’s business rationale for allowing the arrangement for some employees and denying it for others is one of the best ways to minimize legal risk should any denials be challenged.
Here are topics that should be addressed in remote work agreements:
- Whether to retain at-will employment/right to revoke arrangement,
- Work schedule/availability,
- Communication expectations,
- Travel expectations,
- Responsibility for work-related expenses,
- Applicability of timekeeping, attendance, and break policies,
- Data security and confidentiality expectations, and
- Workspace standards and safety obligations.
Wage/Hour Law Considerations
Tracking compensable time, working hours, overtime, and meal/rest breaks for remote workers is top of mind for federal, state, and local regulators. For instance, in February 2023, the U.S. Department of Labor’s Wage and Hour Division issued Field Assistance Bulletin No. 2023-1 addressing telework considerations under the Fair Labor Standards Act. In short, the fact that a worker is remote does not relieve employers from their obligations to ensure compliance with wage and hour laws. In fact, remote work puts even more onus on the employers to be diligent and proactive in these areas.
Some key takeaways from the Department of Labor’s recent guidance include:
- Keep track of compensable break time.
- Pay attention to remote workers’ working time.
- Exercise reasonable diligence to confirm all unscheduled work hours are captured.
- Incorporate the PUMP Act into policies. This act requires accommodations for nursing workers and applies to both remote and offsite employees.
Cybersecurity/Public Records Concerns
Your agency’s IT department should partner closely with management in implementing remote work arrangements. From an IT perspective, risk factors related to remote work include expanded attack surfaces, inadequate lack of security talent, less oversight by security staff, poor data practices and procedures, susceptibility to phishing attacks, unsecured and vulnerable hardware/networks, vulnerabilities in enabling technologies, misconfiguration in the public cloud, and webcam hacking and Zoombombing.
Allowing remote work may create complications for a local government’s compliance with Washington’s Public Records Act obligations when employees are saving records on multiple networks or local drives. For this reason, having a thoughtful protocol for electronic data in a remote work environment is particularly important.
Tax/Employee Benefits Across State Lines
Finally, allowing workers to move between states or hiring from outside of Washington triggers tax and benefits considerations that should be addressed before implementing such an arrangement. For payroll taxes, employers should consider state and local income tax withholding requirements, taxes on wages, unemployment insurance taxes, and workers’ compensation insurance.
From an employee benefits perspective, generally for non-ERISA plans, consider the entity’s group plans and coverage for in-network vs. out-of-network providers and coverage for non-emergency services incurred out of state. Other benefits considerations include insurance policies for short-term and long-term disability coverage, state-specific paid leave laws, etc.
We have learned over the last several years that remote work, when managed correctly, can be beneficial for both employers and employees. However, in order for remote work to be a win-win, employers must be diligent in thinking through the ramifications of remote work and adopting smart policies and practices that clearly define obligations and expectations. We hope this blog is a good starting point for your agency as you examine various legal aspects of remote work.
MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.