November 25 Tip of the Week

“Remote Workers and Compliance Issues”

During the COVID pandemic, remote working – once a rarity – became a necessity and many workers were reluctant to return to the office on a full-time basis after the pandemic ended. Employers, faced with the need to recruit and retain good employees have had to offer more employees the ability to work remotely – this expands the pool of talent that the employer can pull from and also helps to reduce operational costs by requiring less office space and other related in person costs.  However, when using remote workers, employers must keep in mind the compliance issues that are associated with remote employees. There are two areas of compliance that are particularly important for remote workers.

The first is the federal and state required notice provisions for employees.  The federal Department of Labor has a list of required posters that employers must display in the workplace.  Here is a link to a list of those posters:  https://www.dol.gov/general/topics/posters.  State laws also include posting requirements for workplaces, which can usually be found on the website of the state agency that enforces labor and employment laws. When employees work remotely and do not report to a central office location, the question arises as to how to meet the posting requirements.  In general, required workplace posters must be posted in a conspicuous area that is easily accessed by employees.  These posters must be available on a continuous basis and are intended as a resource for employees so that they understand their rights under the labor and employment laws. 

When an employee works from home, the employer does not have the same access and control over the workplace and cannot simply hang a poster in the employee’s home.  Guidance has been issued by the federal Department of Labor that addresses the use of electronic posting of workplace posters or alternate ways to notify employees of their rights under state and federal laws.  Here is a link to that guidance: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_7.pdf. 

In general, whatever electronic means of posting an employer uses, it must meet the underlying requirements of the posting law, which include: (1) notifying the employee about where they can find the postings; (2) making the postings accessible at all times; and (3) ensuring that employees know that they will receive important information from the employer via electronic means.  It is important to note that some labor laws contain their own rules regarding posting and notice requirements and those rules must be taken into consideration in determining whether an employer has met its obligation when using an electronic means to meet those requirements. The guidance provided by the Department of Labor addresses each of these individual statutory requirements. 

The second area of compliance when dealing with remote employees is the application of the Family and Medical Leave law.  Not only do employers of remote workers need to ensure that they are complying with the paid and unpaid leave laws of the state or states in which they and the employee are located, employers must also comply with federal leave laws.  Under the FMLA, an employer is covered by the law if they have 50 employees working within a 75-mile radius. It is easy to assume that a remote employee’s worksite is their home and, therefore, the employee should only be considered in determining whether the employer has 50 or more employees within 75 miles of the employee’s home.  This is not the case, however, as the Department of Labor has indicated that, when determining an employee’s worksite for purposes of the FMLA, the employer must look not at where the employee’s home is located, but at the location from where the employee receives their direction or supervision.  The Department of Labor, in addressing this issue, has specifically stated that a remote worker’s worksite is (1) the location to which the employee reports; or (2) the location from which the employee receives “day-to-day instructions” and assignments.  It is not the location of the employee’s home or the location from which they perform their work remotely. 

Labor and employment law compliance is complicated and requires employers to keep up to date on all state and federal labor laws.  This is particularly true when dealing with remote workers – are they covered by the law in which the employer is located or the law in which the employee is located or both?  Must remote workers be counted in the total number of employees employed by the employer when determining whether the laws apply to the employer?  myHRcounsel can assist you in answering these difficult questions and in otherwise meeting your labor and employment law compliance obligations.