In March 2020, our entire working world changed. As businesses begin to re-open, we are still fighting the Covid-19 pandemic. As many employees shift to a remote work arrangement, employers face more logistical, legal, and HR challenges than ever before.
Joel J. Greenwald, Esq., Managing Partner of Greenwald Doherty, LLP, a New York-based employment law firm, recently presented a webinar for ACE Workforce discussing the five main challenges employers face from employees during the pandemic.
These challenges include:
- Tracking Wages and Overtime with a Remote Workforce
- Understanding Laws that Govern when Employees and Employers Operate in Different States
- Defining Reasonable Accommodations for Employees During the Pandemic
- Managing Performance of a Remote Workforce
- Establishing Remote Work Policies to Support Productivity and Compliance
Employers should keep these challenges in mind for the foreseeable future, as many workers may well expect to continue working remotely even after the pandemic.
How to Avoid Wage and Overtime Issues for Remote Workers
It’s easy to track employee hours when everyone comes to work at a centralized location. Employees can punch a timeclock and you can see when employees are physically in the office. The solution to accurate time tracking for remote workers lies in documentation and verification.
First, make sure to communicate wage and hour expectations for all your non-exempt employees, including those who work remotely. Understand how to calculate overtime properly in your state.
Workers should track their time – either manually or through electronic time clocks – and employers should have them sign documentation to verify the accuracy.
Greenwald noted that, in general, tracking employee overtime and wages tends to be a systemic issue. “If you’re tracking overtime incorrectly for one person or department, you may be getting it wrong for everybody,” he says.
Because errors in overtime pay can result in the employer being liable for liquidated damages plus the employee’s attorney’s fees, it’s important to ensure the accuracy of your wage and overtime policies and tracking – especially with a remote workforce.
Determine Which Laws Govern Remote Workers in Other States
If you run a New York business with employees who lived in New York, you probably never gave a second thought to other state’s labor laws. However, today’s remote workforce has also become a mobile workforce. For various reasons, employees may move to other states but continue working remotely for your company.
Which law governs disputes in these circumstances?
In some types of situations, we may utilize the laws of the jurisdiction in which they work. But in other situations the safest thing to do may be to adhere to the law that’s strictest. Either way, it is probably best to get advice from counsel here.
With this in mind, it might make sense to create a separate state addendum(s) to your employee handbook if you are now managing employees in other states.
Provide Reasonable Accommodations for Employees During the Pandemic
As employees shift to a remote work model, accommodations available in your office may not be available to them in their home office. When an employee requests an accommodation for a disability, Greenwald advises employers to follow the guidelines presented by the U.S. Equal Employment Opportunity Commission.
According to Title I of the Americans with Disabilities Act, an employer must “provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.”
There are state variances to that federal law that should be followed. Greenwald urges employers to enter a dialogue with employees requesting accommodations to determine if the request is reasonable and won’t place an undue burden on the employer.
“It’s harder to challenge remote work itself as an accommodation that poses an undue hardship right now,” Greenwald says, “based on the fact that we’ve been doing it for a while.”
For employees with underlying medical conditions that may put them at greater risk from Covid-19, such as heart disease, diabetes, or advanced age, employers should default to allowing them to work remotely, if possible.
Focus on Performance Management to Maintain Productivity
“Performance management is especially crucial now with less face-to-face time,” Greenwald says. “When a manager gives workers negative feedback over a phone call or Zoom, it can feel even more toxic.”
One solution, Greenwald says, is to have more frequent dialogues and document feedback. “If you have a termination and the former employee is suing you, as an employment lawyer I want to see that paper trail. I don’t care as much what you told them; I want to see what you’ve shown them,” he says.
“Being able to manage people and give them feedback and create a performance management protocol should be part of the requirement for every manager in your company,” Greenwald says. “That’s the case in non-Covid times, too, especially as remote work is here to stay.”
Should You Use Software to Monitor Remote Employees?
While tracking software exists to keep tabs on remote employees, Greenwald instead recommends setting clear expectations rather than monitoring people. “There are privacy issues that come into play, so technological monitoring should be done with care,” he says. “It matters who owns the equipment, because if the employer owns it, there’s less of an expectation of privacy.”
If you opt to use monitoring software, Greenwald says, be sure to get consent in the form of an electronic media policy signed by workers.
How Can You Support Remote Workers in Less Than Ideal Workspaces?
It’s no secret that workers have struggled since the pandemic. Working parents have to contend with children doing virtual or distance learning during office hours. Many families don’t have the internet bandwidth to accommodate multiple Zoom meetings on multiple devices at once. And many people face countless distractions working from home.
Greenwald advises employers to stay in touch with workers and find out what you can do to support and assist them. This could mean providing technology to help them do their job or making recommendations to create a more private workspace. It might also mean permitting them flexible hours so they can supervise children when they need it.
“Being a leader right now is harder than ever before,” Greenwald says. “Keeping your people together to work as a unified team is harder than ever before. I want you to be interactive with them. Making sure your employees are working in synch with you is crucial for productivity and to reduce employment law problems for business owners.”
Create Remote Work Policies for Clarity and Consistency
You should also create a remote work policy that employees sign. “The policy codifies things and potentially puts you less at risk,” Greenwald says. “Plus, when things are clarified, it makes for a happier workforce.”
Greenwald suggests certain elements to include in the policy:
- Privacy policies
- Reimbursement policies
- Timekeeping policies and reporting
- Communication policies
- Dress code policies for Zoom meetings
The remote work policy should also address such questions as:
- Who owns office equipment for remote work?
- How can the employer guarantee safe return of equipment?
Finally, the remote work policy should remind employees, in general, that all other company policies still apply in a remote work environment.
Greenwald also urges employers to specify that they have full discretion to set an end date on remote work, so that it doesn’t continue indefinitely if the employer feels he wants employees to return to the workplace after the pandemic.
In all, understanding, communication, and accommodations can help this transition to a remote work economy go smoothly.
“We need to adjust to the new reality and still remain legally compliant,” Greenwald says, noting that employers should seek legal counsel to create handbooks and policies or if they have any questions.
This is not legal advice. For answers to your specific questions, please consult with your own lawyer or contact Joel Greenwald at www.greenwaldllp.com.