All information in this COVID-19 Response Resource issue is effective as of September 15, 2020.
We are learning to live with COVID-19. Part of that learning process involves changes in workplace dynamics for workers in service industries. Companies and employees have learned that employees can work from home just as effectively as they do in the office. Going forward, a greater number of employers will reduce their office footprint as more employees work from home. Employers who allow remote working situations should consider the following recommendations.
Ensure that employees accurately track their time
When employees telework, particularly employees who are paid an hourly wage or who are paid a salary but are not exempt under the Fair Labor Standards Act (FLSA), employers must create policies and procedures to ensure that employees accurately track their time. Employers often mistakenly believe that if an employee is paid a salary, he or she is exempt from overtime or minimum wage requirements. To be exempt from overtime and minimum wage requirements under the FLSA, most employees must be paid a minimum salary level of $684 per week, and they must also perform certain job duties.
Tracking the time of hourly employees and salaried employees who are not exempt under the FLSA is critical to effectively manage teleworking situations and avoid unexpected overtime claims. Employers should advise employees in writing that they may work only 40 hours per week, unless the employer agrees in writing that they are authorized to work more, and that violation of the policy may lead to discipline, up to and including, termination. “Work time” may include time taking telephone calls and answering e-mails and text messages, even if done before or after regular work hours. If an employer offers break times and meal periods to teleworking employees, it should specify the time periods for those breaks and meal periods. Employers can invest in software programs to track working activity for employees who work on computers. Finally, employers should consider requiring employees to verify that the hours they submit are the actual hours the employee worked during the relevant time period.
Protecting confidential information
Employees who work from home may access confidential information belonging to the employer from their home computers and networks. Employers should ensure that the employee’s computers and servers are using appropriate security measures and firewalls to prevent unpermitted access. Employers should develop policies regarding use and disposal of hard copies of documents containing confidential information at the employee’s remote place of work.
Safely working at home
Employers are aware that they are required to provide safe work environments for employees, and that employees injured at work can bring workers’ compensation claims. Employers are often surprised to learn that those obligations can extend to employees working at home. Employers have a high degree of control regarding safety at the employer’s workplace; they have much less control when the workplace is an employee’s home. Employers should encourage employees to have a dedicated workspace with appropriate workstations, desks, chairs, lighting and appropriate air conditioning and heating, among other safety considerations. Employers may wish to inspect the employee’s home workspace to ensure that it is a safe environment.
An increasing trend is employees teleworking out of state. An employee who previously worked at an employer’s offices in Utah may decide to telework from another state. Employers should be aware that when this happens, they may be required to withhold state income taxes, unemployment insurance premiums and obtained workers compensation coverage under the laws of the state from which the employee is teleworking. Different states have different rules regarding when such withholdings and insurance premiums must be paid.
As employers adapt to meet the increased demands of employees to telework, they should be careful to ensure such arrangements comply with legal requirements, and don’t create additional liabilities. Prudent employers will devise ways to use the teleworking trend to their advantage, such as decreasing their office footprint and rental obligations for office space, as less space is needed for employees who telework.
To discuss this or other employment-related issues, contact Sean A. Monson by calling (801) 536-6714 or send an email to firstname.lastname@example.org.