Remote and hybrid work are here to stay. Many employers were forced to permit remote work due to the pandemic. Two years later, many workers are still operating remotely (at least part time) and are hoping to make it permanent. In fact, according to an April 2021 Society for Human Resources Management study, 70% of workers surveyed said they would like to work remotely full or part time. Nearly 20% said they would look for a remote position elsewhere if their employer did not give them the option to work remotely.
Thus, many employers are continuing (or exploring) remote work, either out of necessity or as a recruiting and retention tool. If you are one of them, you want to ensure that you and your remote workers are set up for success.
As with any other aspect of running a business or having employees, there are numerous legal considerations involved in maintaining a remote workforce. This is especially true for companies in highly regulated industries, such as banking and finance.
For example, some things to keep in mind when implementing a remote work program include:
- Tax requirements, especially if the remote workers are located in other states.
- Confidentiality and data security requirements, including obligations under the Gramm-Leach-Bliley Act and FTC guidelines. Companies need to ensure all confidential information (including customer information) is kept confidential even though an employee is working remotely.
- Equal Employment Opportunity (EEO) laws, including Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, and their state and local law equivalents. Decisions related to remote work, including who is allowed to work remotely, should be made on a non-discriminatory basis. Reasonable accommodation requirements may also apply.
- Wage and Hour laws, including ensuring non-exempt remote employees are accurately recording their time, being paid for all hours worked (including any overtime), and being provided any required break times. Business-related expenses may also have to be reimbursed under state or federal law.
- Non-compete/non-solicitation agreements, especially if the remote workers are located in other states. Some states prohibit or limit the use of these agreements, and worker location may impact enforceability.
Tips for Maintaining a Successful Remote Work Relationship
1. Create a Remote Work Policy
Employers who allow remote work should have a Remote Work Policy that clarifies the process for granting permission to work remotely and the policies and procedures that will apply.
Employers should carefully evaluate who should be considered for remote work, taking into considering the following factors:
- Job Duties – Can the employee do the job remotely?
- Data Security – Can the employee’s job duties be performed securely from a remote environment? Does the employee need access to nonpublic personal information from customers?
- Supervision Requirements - Does the employee’s position require close supervision, either because of the nature of the duties or because the employee needs additional training?
- Performance Expectations – Is the employee meeting performance expectations now? Can the employee work independently and efficiently when not closely supervised?
- Reasonable Accommodation Obligations – Is the employee seeking remote work as an accommodation for a disability or health concern?
2. Create a Remote Work Agreement
One way to ensure that expectations for remote work are clear is to require the employee to sign a Remote Work Agreement, ideally before the employee starts working remotely.
The Remote Work Agreement should include provisions covering:
- Logistics of remote work, including where work is to be performed and what work hours are;
- Time recording requirements and process;
- Care of equipment belonging to the employer;
- Expectations for treatment and protection of confidential information;
- Required network security;
- Who is responsible for expenses;
- Productivity/accessibility expectations, including that remote work may be discontinued if performance is unsatisfactory;
- Expectations related to presence of others or caretaking obligations during working hours;
- Obligations for in-person meetings;
- Return of company equipment, documents, and information upon end of employment or at the request of employer.
3. Enforce Accurate Timekeeping Requirements
To ensure that remote non-exempt employees are accurately reporting—and being paid for—all of their working time, employers should:
- Adopt and have employees sign a timekeeping policy which requires employees to accurately record and report all hours worked;
- Use an electronic timekeeping system;
- Have employees review and sign their timecards weekly, along with a verification that the timecard is complete and accurate;
- Provide a mechanism for employees to report or correct inaccuracies on time cards;
- Require approval for overtime and carefully monitor overtime;
- Pay employees for reported time (including overtime), and address any concerns about performance, productivity, or potential over-reporting of time through a disciplinary process.
Ultimately, the key to successful remote work is documentation and communication.