The COVID-19 pandemic has changed many aspects of everyone’s lives. Many of the major changes have taken place at the workplace. Employers were forced to scramble to create systems to allow employees to work remotely. Initially, this was a huge challenge for many employers, particularly those that had never allowed employees to work remotely prior to the pandemic.
Now that 6 months have passed, and the pandemic is still very real, many employers have realized the benefits of this new structure and are making the decision to permanently transition to a remote workforce. A recent article in Law 360 addresses this issue and offers 5 steps to guide employers through the transition to a permanent remote workforce.
In this article, Baker McKenzie attorneys Narenda Acharya, Caroline Burnett, and Susan Eandi cite statistics supporting the success of remote workforces and the expectation of an increase in permanent remote workforces.
The authors provide a 5-step “blueprint” of legal considerations for making the transition to a permanent remote workforce:
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“Define remote.”
The authors note the importance of making the distinction between temporary and permanent remote work. Temporary remote workers are working remotely due to certain circumstances, but do expect to return to the office, when they are able to do so. Permanent remote workers are allowed to work remotely with no expectation of returning to the office.
There is another type of employee who may be a “hybrid” of temporary and permanent. These employees may want to work a few days a week in the office and a few days a week remotely. The flexibility of this schedule may be determined by the employer.
Some or all of these types of remote work may work for an employer. In order to determine what works for you, the authors suggest looking at factors such as the “industry, business model, location of office/workforce, footprint and internal company technology and resources.”
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“Set the guardrails by choosing locations and monitoring head count triggers.”
One of the important factors to consider when making the transition to a remote workforce is the consideration of various employment law issues, and ensuring that remote workers understand that they are still subject to company rules and expectations.
Other factors to consider are making a compliant expense reimbursement policy for all remote workers, defining work hours, and defining the workspace.
Will the company allow employees to work and/or relocate to locations where the company does not have a legal presence?
If employees are now allowed to work remotely from a different state, this may trigger several local, state, or municipal laws, some of which may include minimum wage, paid sick leave, vacation, and other leave laws. There may also be tax implications for both the employer and the employee.
Head count triggers, such as paid sick leave laws, pay equity, and EEO-1 reporting must be considered when employees are allowed to work in different states.
The employer should also consider compensation issues related to the location of the remote employee. There may need to be adjustments based on the cost of living in some locations.
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“Design an application process with established criteria.”
The authors provide some tips for employers to attempt to mitigate legal risk while maintaining flexibility. These tips allow the employer to clearly define the eligibility for remote work and establish manageable boundaries around their remote work policy.
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“Craft policies to support the remote model.”
Implementing a remote work policy is essential. It is important that the employer set the expectation that remote work is a privilege, so that the employer has the flexibility to deny an application for remote work, or revoke the privilege from an employee, if necessary.
This section of the article addresses several of the important issues to consider when drafting and implementing a remote work policy. The employer will need to determine how they are going to create a compliant policy, as well as how that will change or interact with existing company policies.
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“Communicate expectations and compensation.”
The authors recommend that drafting individualized remote work agreements is “best practice” for setting the expectations of remote employees. This agreement will include expected parameters of work, including the employee’s compensation.
Confirming the work location of the employee in this agreement is also important. This is helpful in many ways, including consideration of the tax consequences to the employee.
It is strongly suggested that these remote work agreements include language making it clear that the terms may change based on the company’s discretion. The employer needs to protect its right to require employees to report to an on-site location, “to the extent allowable under local law.”
Is a permanent remote workforce a good idea for your company?
Although this appears to be a complicated process, it is not insurmountable, and many companies have already implemented some of the structure that is required for permanent remote work. An employer should consider that, along with more administration, there may be advantages to allowing remote work, such as lower overhead costs, reduced commuting, and attracting a more diverse and talented workforce.
The entire article can be found here.
