A big reason employers are still allowing hybrid work is business benefits like reduced operating costs. But it’s also harder to ensure employment laws are being followed by your entire team.
Compliance missteps with federal employment laws are especially costly right now. A good example: the new higher penalties for violating the Employee Retirement Income Security Act (ERISA). The Department of Labor (DOL) can request documentation related to a retirement or health plan subject to ERISA rules, but if a telecommuting employee distracted by a home emergency fails to submit the info on time because the assignment fell through the cracks the fines can run as high as $184 per day.
Staffers working from home may need a reminder that while they’re on the clock, employment laws still apply to them. Your bottom line may depend on it.
Fair Labor Standards Act (FLSA)
With no one encouraging them to stop working and go home, folks working remotely could secretly be working during nights and weekends, putting in longer hours than your office workers. For nonexempt employees, that could spell wage and hour employment law compliance trouble. For exempt employees, the issue is the risk of burnout/turnover.
FLSA exempt/nonexempt status cannot be a gray area when it comes to employees working from home for any part of the week. And classifying remote employees as independent contractors, or reclassifying them as exempt, just to avoid tracking time is a big no-no.
Some important questions your managers or Payroll need to help answer:
- What are employees’ set work hours?
- Do adjustments to an employee’s schedule or workload need to be made?
- How do time, projects and productivity get tracked?
- How often are employees expected to come to the office?
- What telecommuting costs, if any, are reimbursed?
It’s important to have accurate timekeeping records for nonexempt employees so Payroll can correctly pay any overtime owed.
If someone ever sues for back overtime pay for working extra hours, logs of work computer access and email messages sent outside of scheduled work time can be used as evidence to support their claim. It may be necessary to add restrictions to remote computer access based on agreed-upon work hours.
Also, beware of these potential employment law pitfalls with remote employees:
- “Commuting” to the office for meetings. Time spent commuting is unpaid, but that may not apply to fully remote employees since they’re technically already at work and traveling to a different work location.
- Enforcement of no working during mealtime breaks of 30 minutes or more. This is especially crucial in states like California, where breaks are highly regulated. Remember, if an employee is not completely relieved of work duties during this time, they must be paid for that time. You may want to consider sending break reminders during designated meal times.
Family and Medical Leave Act (FMLA)
Allowing employees that have been with you at least a year (and worked at least 1,250 hours within the last year) to work remotely while being a caregiver for a loved one under the FMLA requires careful management. Their regular work hours and up to 12 weeks of FMLA leave must be properly counted separately. FMLA hours only apply to the time the employee is not working.
An FMLA eligibility requirement that often trips employers up when it comes to remote employees is the workplace being where the employer has at least 50 employees within 75 miles. According to the DOL, an employee’s home doesn’t count as a work site. When an employee works from home, their work site for purposes of the FMLA is either where they report for their work assignments or the place that assigns their work.
Because it’s possible for part-time remote employees to become eligible for FMLA leave, make sure Payroll tracks all work hours that the employee puts in so you know when they become eligible.
For eligible workers taking intermittent FMLA leave for their own serious health condition, it’s necessary to discuss with remote employees how they will record the time taken for managing flare-ups of their condition. As with caring for family members while telecommuting, you have to track carefully which hours are FMLA and which hours are regular work time.
Check out this recent DOL guidance on FMLA and breaks of 20 minutes or less, including breaks being taken by nursing mothers.
Occupational Safety and Health Act
Telecommuting doesn’t automatically exempt employers from health and safety employment laws. You don’t want to find that out the hard way when there’s a workers’ comp claim because somebody fell down the stairs at home during the work day.
Does your workers’ comp insurance carrier require an inspection of home workplaces or employee reclassification? Are all employees’ home offices ergonomically sound? If you’re not sure, now’s the time to find out.
