Renee Schor

August 21, 2023

With significant health risks associated with COVID in the rear-view mirror for most of your workers (we hope), is your company one of the many making the “remote, hybrid or in-person” decision?

Some interesting (and conflicting?) perspectives:

  • CivicScience (an opinion research firm) reports that recent data shows that 37% of currently employed adults (as of January 1, 2023) are working either fully remote or in a hybrid situation, and that these workers are twice as likely as in-person workers to report they feel unhappy in their jobs: 38% of hybrid workers and 41% of fully remote workers say they are unhappy to some degree with their current position, compared to just 21% of people working fully in person at an office or location.
  • The Conference Board found in its annual job satisfaction survey that US workers have never been more content, and found that across the majority of 26 factors surveyed, employees with hybrid work arrangements report the greatest job satisfaction compared to fully remote or fully on-premises workers.
  • Meanwhile, Martha Stewart is “on a rampage” to get workers back to the office, questioning whether America should “go down the drain because people don’t want to go back to work?”

If you continue a remote or hybrid structure, there are some must-dos (based in particular on recent court decisions) and some should-dos to improve employee satisfaction and protect yourself from litigation.  Here are six steps for you to consider:

(1)     Do you need to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties?”  Are you required to reimburse for home internet?  Cell phone service costs?  Other increases to home expenses related to remote work?  This answer requires a finessed review of your structure against California law.  At the same time, you may want to consider the morale implications of providing (or not) these benefits.

           And before we put COVID entirely behind us on this subject, on July 11, 2023 the California Court of Appeal ruled that employees who worked from home during the pandemic, even during the mandatory stay-at-home periods, are owed reimbursement for business expenses under California law.  In that case, the employer was found to owe work-related computer, internet and phone expenses.  The court reasoned that, although it was not the Company mandating that these employees work remotely (they did so in response to a state-mandate that they not report to work), those employees nonetheless performed work at home for the benefit of the employer, and any expenses incurred in doing so must be paid by the employer.

(2)           Do you have the right policies in place?  Did your practices follow the law?  Do you owe employees any backpay?  Are you at risk for litigation?  To better protect your company from expensive lawsuits, please let us know if we can help with a review of your policies, practices, potential liability and strategy on expenses reimbursement, particularly in light of this recent decision.

(3)     Remember, you may need to comply with the relevant laws of the state (or city) in which the remote employee is working, even if they report to a location in another state.  This requires particular caution with respect to complying with wage and hour laws.  And on that same topic, realize that you may be required to treat more driving time as “compensable time” if the employee’s “office” is now their home.  For example, is the drive into the office commute time or travel time, if they are remote workers?  In some more horrifying recent news, a New Jersey federal court recently held that non-residents who work outside the state on behalf of a New Jersey company are governed by New Jersey’s antidiscrimination code.  Yikes.  This is inconsistent with most decisions on the subject (i.e., for the most part employment claims are governed by the laws of the state in which an employee resides and performs work), so we will keep an eye open. 

(4)     Consider new processes for tracking working time for remote non-exempt employees.  We recommend you remind remote employees of your expectations for tracking time worked (and time not worked).  And with employees out of sight, you aren’t in a position to observe whether they are working full days, so you may want to consider programs that track whether employees actively are working when they say they are, but be very very careful to observe privacy and notice rules if you do.  We are happy to help guide you through this process. 

(5)     Remote non-exempt employees still are entitled to meal and rest periods, how do you track them?  And remember, you still are required to pay premiums if employees are prevented from taking these breaks.  All of this is much more difficult to manage from afar.  You will want to remind employees of their obligation to take these breaks, and to log out and back in for meal periods, and establish a system for employees to report whether a missed meal or rest period was their own choice or because they were prevented from taking it.   We can help you create process and practice to reduce your worry.  

(6)     The most influential factors of retention overlap with four of the top five predictors of overall job satisfaction: organizational culture, quality of leadership, potential for future growth, and interest in work.  Don’t let your remote workers be out of mind just because they are out of sight.  Create systems for bonding that do not rely on the employee being in the office, and train your managers on how to create and sustain strong positive relationships, even when the employee is out of the office.  Even when it is harder to do.  Training your managers may be the most important step you take in protecting yourself from liability and motivating employees.  We can help, with a training program tailored to your unique work environment. 

Let us know if you have any questions or would like help in protecting your workplace. 

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