The world of employment law is historically ever-evolving, and no more so than in recent years.
Before the pandemic, 30% of employees worked remotely/hybrid. Post pandemic, 48% work remotely/hybrid.
The growth of a remote or hybrid workforce has created new areas of concern:
- Remote/Hybrid Worker Location
- Data Security at Remote Workplaces
- Monitoring Remote and Hybrid Workers, and Workers Comp
ADP delved into those topics during its annual Employment Law Checkup webinar.
Impacts of Remote/Hybrid Worker Location
What if a company’s brick-and-mortar location is in one state, but an employee works from home in another state?
The onus is on the employer to ensure that the company is in compliance with the “foreign” state laws, including: tax issues, hourly wage issues (increases in minimum wage), FLMA laws and annual compliance notices.
Let’s break these down:
Tax and benefit issues – payroll taxes withheld must be adjusted correctly for the hours that the employee is working in the “foreign” state. Payroll taxes apply where the work is performed.
Hourly Wage issues – Yes the federal government sets the minimum wage, but whatever a state sets overrides that. For example, the federal minimum wage is $7.25; Connecticut recently raised its minimum wage to $14. Some states (for example, Colorado and California) calculate overtime differently – for example, by the day and not the week.
Takeaway Advice from ADP senior counselors Kevin Skelly and Samantha Munro:
“The employer should have strict policies concerning “off-the-clock” work (such as making and answering calls after regular work hours). Employers should have a simple time recording instrument. Employers must ensure that work time is recorded and paid. Employees must be paid for all hours worked.”
FLMA laws – Employees are eligible for FLMA if they have been with a company for 12 months and have worked 1,250 hours during those months. But, the employee is eligible for leave based on the state regulations where the employee works, if further than a 75-mile radius from the company’s office.
Some states allow for supplemental sick leave pay. For example, California allows for up to 80 hours for full-time employees and for part-time employees, paid hours matching an average one-week’s hours (through 9/30/2022).
Also, some states are expanding the definition of family. Typically, family was spouse, son, daughter or parent. States are changing that, for example, New York has added siblings. Maine has added grandparents, grandchildren and domestic partner’s grandchildren. .
Annual Compliance Notices
These are typically posted on a bulletin board in the workplace. Employers can send these to workers electronically, and should also send a hard copy.
Data Security at Remote Workplaces
If not done correctly, allowing workers to do their jobs remotely can greatly contribute to attacks of ransomware and security breaches.
Workers should be instructed:
- To contact IT before opening any suspicious emails.
- To use a strong password and change it regularly.
- To never send corporate data to a personal email or cloud account.
- To use caution when opening attachments.
Employers should make sure that employees:
- Do not have access to certain company data that is not needed for them to do their jobs.
- Have signed non-disclosure and restrictive covenant agreements.
Monitoring Employees
Some employers have taken steps to monitor employees by various measures, such as keeping count of the number of keystrokes the employee makes on the work computer.
Some states have electronic monitoring notice requirements. If a workforce is unionized, there may be conditions against monitoring spelled out in the bargaining agreement.
Employers should:
Monitor employees equally, without targeting certain employees.
Set policies on methods to record work time.
Set specific times for breaks and lunches, and ensure that employees are not contacted during these times.
Establish a specific “workplace” location with the employee’s home. This can be important in cases of a worker’s compensation claim, if the workplace has not been established as “where the employee may reasonably be.”
What Else Do Employers Need to Do?
Employers should review and update employee handbooks and policies, if necessary, adding specific addendums by state.
Stay informed by subscribing to ADP’s State, Local and Federal updates. You’ll get emails as policies emerge.
Realize that legislation and rules are often not the final word. Engage the services of an attorney and/or accountant with experience in employment law.
