Remote Work: Pandemic & Beyond

Regina Young Commentary

Remote Work: Pandemic & Beyond

The COVID-19 pandemic has shown that technology has made remote work viable for positions previously considered not suitable for such arrangements. And many employees who were previously apprehensive about remote work have now embraced it. Will employers now consider making remote work permanent for such positions?

Research firm Gartner said in April that 74% of 317 CFOs and finance leaders surveyed on March 30 intended to move at least 5% of their previously on-site workforce to permanently remote positions post-pandemic.

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Employers should be mindful of best practices for remote work whether short term or long term.

And even if remote work is implemented for the short term only, there should be clear, written employment policies explaining company rules and expectations for remote workers.

Wage and Hour. A complicated area even when businesses aren’t in the middle of a pandemic, the classification of workers and payment obligations between exempt and nonexempt workers also applies to remote workers. With a few exceptions, exempt employees should be paid in full for any week in which they perform any work remotely, and nonexempt employees are generally entitled to pay only for time actually worked remotely, whether a full or a partial day.

For nonexempt remote work employees, this still requires tracking of hours. Employers need to be especially careful that they have appropriately classified remote workers, and that they take into account both salary and primary job duties in making those classifications.

Employers must carefully monitor nonexempt remote workers’ time. Tracking hours can be done several ways, including through the installation of tracking software on company computers that not only monitors hours, but can also monitor productivity. Employees’ right to privacy needs to be considered with any monitoring application, and transparency regarding the use of tracking software is recommended.

Information Security. Remote workers should receive training on company remote work security policies and should be updated regularly on popular scams. Simulated platforms should be considered to test employees on identifying dangers such as phishing emails. Remote workers should be reminded to avoid public Wi-Fi, keep work data on work computers, never leave work computers in a vehicle, report anything suspicious to the IT department or manager, and change administrative passwords frequently. Remote workers should also be told where to store confidential and sensitive information.

Worker Safety. Employers retain responsibility for hazards caused by company-provided materials or equipment used by its employees in their homes. According to OSHA, an injury is considered work-related if it occurs at home while the employee is performing paid work related to the performance of the work rather than to the general home environment. Companies are required to keep records of work-related injuries and should advise remote employees to report work-related injuries.

Written Remote Work Policies. To avoid a presumption that remote work is being provided as a reasonable accommodation under the Americans with Disabilities Act or otherwise setting precedent for future telework, employers should consider adopting a written policy that establishes remote work from home is being allowed during the pandemic where it would not be permitted in the ordinary course of business. Your remote work policy should also warn nonexempt employees about working off the clock and mandate that they accurately record their time.

It is also a good idea to advise employees to give their attention to their duties while on the clock and adhere to break and attendance schedules.

Regina A. Young is a partner in the Wright Lindsey & Jennings law firm in Little Rock, and her practice includes employment litigation and counseling.