According to Gallup, the number of days employees are working remotely has doubled during the pandemic. Some companies are even considering making a remote work arrangement permanent. While there are no laws that exclusively apply to remote workplaces, remote work does come with additional compliance risks. Avoid these top 9 remote work compliance pitfalls with the general guidance below.
1. Logging All Hours Worked
Make sure that employees are logging all of their time. Keep in mind that when working from home, the boundaries between work and home life are easy to blur. Employees may be racking up “off the clock” work that they aren’t being paid for.
While this may seem harmless, unpaid wages can come back to bite you once the employee is on their way out the door.
2. Applicable Minimum Wage
Employees should be paid at least the minimum wage of the state where they physically work. This is true whether the workplace is a satellite office or the employee’s own home.
Beyond that, it’s important to note that some cities and counties have even higher minimum wages than the state they are located in. Generally, as with most employment laws, you should follow the law that is most beneficial to the employee.
Top Tip: Use the Minimum Wage Map in our HR Support Center to ensure you’re always paying employees appropriately, regardless of location!
3. Missed Breaks
Remote employees must still take all required breaks and rest periods required by law. Just as if they were in the workplace!
4. Harassment Prevention Considerations
You may have employees working in states with different harassment definitions or prevention training requirements. You can find this information on the State Law pages in our HR Support Center.
Further, remote work also comes with additional opportunities for harassment. (Even if it doesn’t rise to the level of illegal harassment). For example, employees wearing inappropriate clothing, roommates in the background unaware that they are on camera, or visible objects that other employees may consider offensive.
You can prevent these sorts of incidents by having clear, documented expectations about remote meetings, communicating those expectations to your employees, and holding everyone accountable to them. It also wouldn’t hurt to occasionally remind everyone to be mindful that they and what’s behind them are visible to coworkers when they’re on video.
That said, going overboard with standards that you’re applying to employees’ private homes has the potential to cause anxiety and morale issues. So make sure your restrictions have a logical business-related explanation.
5. Don’t Forget About Workplace Posters
Many of the laws related to workplace posters are from decades before the internet. As a result, their requirements don’t always make sense given today’s technology.
The safest option to ensure you’re complying will all posting requirements in one fell swoop is to mail hard copies of any applicable workplace posters to remote employees and let them do what they like with the posters at their home office. If you have employees in multiple states, you should send each employee the required federal posters, plus any applicable to the state in which they work.
Alternatively, some employers have opted to provide these required notices and posters on a company website or intranet that employees can access. This is growing in popularity as a number of newer posting laws expressly allow for electronic posting.
Top Tip: Ask about our ePoster solution to learn how you can comply with posting requirements for remote workers for only $2 per employee!
6. FMLA Eligibility Considerations
Remote employees who otherwise qualify will be eligible for FMLA leave if they report to or receive work assignments from a location that has 50 or more employees within a 75-mile radius.
According to FMLA regulations, the worksite for remote employees is “the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”
So, for example, if a remote employee working in Frisco, TX, reports to their company’s headquarters in Portland, OR, and that site in Portland has 65 employees working within a 75-mile radius, then the employee in Frisco may be eligible for FMLA. However, if the site in Portland has only 42 employees, then the remote employee would not be eligible for FMLA. The distance of the remote employee from the company’s headquarters is immaterial.
7. Temporary Changes for Verifying I-9s
Under normal circumstances, there is a physical presence requirement for the Employment Eligibility Verification Form I-9. This requires that employers or an authorized representative physically examine, in the employee’s physical presence, the unexpired document(s) the employee presents from the Lists of Acceptable Documents to complete the Documents fields in Form I-9’s Section 2.
However, in March, the Department of Homeland Security (DHS) temporarily suspended the physical presence requirement for employers that are operating remotely due to COVID-19.
In other words, employers with employees taking physical proximity precautions due to COVID-19 (and operating remotely!) do not need to review the employee’s identity and employment authorization documents in the employee’s physical presence. Instead, employers should inspect these documents remotely.
8. Providing Equipment
In some states, employers must either provide employees with the items necessary to complete their job or reimburse employees for these expenses. However, states do not typically consider workstation equipment like desks and chairs to be in this category of necessary items.
That said, an employee might request a device or some form of furniture as a reasonable accommodation under the Americans with Disabilities Act (ADA) so they can perform the essential functions of their job.
In such cases, you would consider it like any other ADA request. Allowing them to take home their ergonomic office chair, for example, would probably be a reasonable accommodation.
9. Deciding Who Can Work from Home
You may offer different benefits or terms of employment to different groups of employees. However, any distinction must be based on non-discriminatory criteria.
For example, a telecommuting option can be based on the type of work performed. You could also base this on employee classification (exempt v. non-exempt) or location of the office or the employee. However, ultimately you should be able to support the business justification for allowing or requiring certain groups to telecommute.
Do you have remote workers due to COVID-19? Or did you already have team members working remotely before the pandemic? Let us know how your experience has been in the comments below! For even more employee management tips and tricks, head over to our HR Support Center.
Need a little extra support? No matter your situation, SDP has layers of HR support that can help. Learn more about our HR Support Services here. And don’t forget to follow us on Facebook, Twitter, and LinkedIn for even more business tips & news!