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The COVID-19 pandemic that forced many companies to restructure their workforce has showed that advances in technology have 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 working from home. With this experience under their belts, will employers now consider making remote work permanent for such positions?
According to an April 2020 Gartner press release, 74% of 317 CFOs and Finance leaders surveyed on March 30, 2020, intended to move at least 5% of their previously on-site workforce to permanently remote positions post-pandemic. Recent news about tech companies back up Gartner’s survey, including a BuzzFeed News article reporting about Twitter CEO Jack Dorsey’s recent announcement that employees whose physical presence was not required could permanently work from home after the pandemic crisis passes, and a New York Times article reporting that Google and Facebook employees were told that they could stay at home until 2021. As companies continue to grapple with COVID-19 business disruption and seek cost-saving measures to minimize the impact to operations, making remote work permanent for certain positions is a cost-saving option that some businesses are considering.
Whether telework is permitted short-term or long-term, employers should be mindful of best practices for remote work. In their haste to transition to remote work in March, businesses may have overlooked important employment laws and requirements. Areas that employers should consider for compliance and best practices related to remote work include payment and tracking of hours, maintenance of information security, and worker safety. 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 its remote workers.
Wage and Hour. An area that is complicated even when not 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 of hours can be accomplished in a variety of ways, including the installation of tracking/monitoring software on company computers that not only track hours, but can also monitor employee productivity while working at home. 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 they should be updated regularly on popular scams. Simulated platforms should be considered to test remote employees (and non-remote 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.
Steps companies can take to maintain information security for its remote workers include:
1. Remote access should be provided through a VPN (virtual private network) or gateway that utilizes two-factor authentication;
2. VPNs should identify machines to determine whether the machine is a company-owned machine or a BYOD (bring your own device) machine and limit access to the network accordingly;
3. VPNs should tunnel all traffic and not allow access to local network resources while connected to the VPN;
4. Data leak protection software should be used to restrict and/or monitor file copies to removable devices and printing;
5. If using webmail, ensure that attachments can only be viewed from the browser and not opened/downloaded on non-company owned machines; and
6. Make sure that patches are still deployed to remote machines.
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 performing paid work directly 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 for the remote work policy to advise employees to dedicate their attention to their job duties while on the clock; adhere to break and attendance schedules; keep company-owned computers and equipment safe and avoid misuse; and refrain from downloading suspicious or unauthorized software.
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While we can really only guess at the long-term effects, there is no question that the COVID-19 mass remote working directive has, at least in the short-term, altered how we work. Employers and employees will have to communicate about these changes, trust each other, and learn to be flexible as we work our way to the new normal—whatever that may be.This information is provided by Wright, Lindsey & Jennings, LLP for educational and informational purposes only and is not intended and should not be construed as legal advice. Businesses and individuals with additional questions should contact Regina Young or a member of the Labor & Employment team.