The New Reality: The Remote Workplace Is Here—Maybe Permanently!

By Joshua R. Woodard, Elizabeth S. Wylie, Erin Denniston Leach, David P. Williams, Swen Prior and Y. Rubi Bujanda

A recent survey conducted by the Society of Human Resource Managers revealed that one of the top employment issues businesses face today is how best to train supervisors to effectively manage a remote workforce.  Close behind supervisory training is the need for a formal, written telework policy.  The workplace strains brought about by the sudden shift to remote work are being felt by employers, many of whom (i) did not envision that a remote workplace would be a long term situation; and (ii) implemented only the minimum amount of structure necessary to support their workforce during (what then was believed to be a short-term) pandemic.  Employers are now eyeing the opportunity to attract and retain workers and reduce overhead by allowing certain functions to be performed remotely—this time, permanently. 

This Legal Alert highlights considerations for employers who are investing in a remote workforce for the long-term. 

I.  Invest in a sound remote work policy.  All employers who allow workers to work remotely, whether on a temporary or permanent basis, should consider a remote work policy that addresses issues, such as which positions/functions may be performed remotely; safety and location of remote workspace; time-keeping mechanisms; employee efficiency and monitoring; attendance records; time-off protocols; schedule and availability expectations; protection of confidential, trade secret, and proprietary information; use and protection of intellectual property; protection of sensitive employee information; customer confidentiality; and reimbursement of business expenses that would otherwise not be incurred if the work were performed in the employer’s usual place of business (e.g., Internet access, cell phone use, and computer/device use and maintenance, and supplies).  In addition, businesses should consider the jurisdictions in which remote employees are located.  The location from which an employee performs remote work may raise new tax and legal considerations for the employment relationship and the business as a whole. For example, in California, an employer is required to reimburse for all reasonable and necessary business expenses. A California Court of Appeal already found, before the pandemic, that if an employer required an employee to use their cell phone for business purposes, the employer was required to reimburse the employee a portion of the bill, even if the employee did not incur any additional charges for its use for business purposes (whether due to an unlimited plan or otherwise). It is anticipated that California courts may reach the same decision when it comes to home internet bills.

II.  Modify administrative practices.  Remote work presents unique compliance and payroll challenges.  Consider adapting human resource practices and procedures for the remote workplace: Are employees paid timely pursuant to local law? Are non-exempt employees now entitled to daily overtime and/or required meal and rest periods, or perhaps employees are no longer entitled to daily overtime and/or required meal and rest periods? Are workers entitled to paid sick leave under applicable state and/or local laws based on their remote work location? Are employees entitled to additional leave rights under the law of the city and state within which they are working? Are legally required notices distributed to workers using a method compliant to federal, state, and local law? Are electronic timecards appropriately utilized and capturing all time worked? Have gaps in worker knowledge regarding remote work policies been identified and addressed? When a worker is terminated, are all applicable state and local laws complied with, including with respect to the timing of a final paycheck?

III.  Provide training for human resource professionals and supervisors.  Human resource professionals and supervisors may need training regarding how best to handle common workplace issues in the context of a remote worker.  For example, engagement and motivation of employees, evaluation of employee performance, employee discipline, communication of schedule and availability expectations; accommodation of disabilities; application of conduct policies to a remote environment, responding to internal complaints, and workplace injuries, all present unique issues with a remote workforce, and how to help remote employees feel part of a team.  Further, remote workers may be reluctant to raise concerns in a remote environment, which can erode morale and pose compliance risks. Businesses that allow any portion of the workforce to work remotely should consider special training for human resource professionals and supervisors.

IV.  Identify modifications necessary to safeguard confidential information, trade secrets and intellectual property.  When workers access sensitive information outside of an employer’s jobsite and in less structured environments, the risk of unauthorized use and disclosure rises, affecting not only the information belonging to the employer, but also sensitive customer information and data. Nonetheless, many remote workers regularly access sensitive information that is not protected by measures such as passwords, dual authentication, encryption, or a VPN network.  Employers should consider assessing the risks created when certain functions are performed remotely and analyzing measures designed to shore up the confidentiality of such information.

Additionally, while some states allow employers great latitude when entering restrictive covenants designed to protect trade secrets and customer goodwill and when imposing post-employment non-competition or non-solicitation requirements, other states (like California and Colorado) may limit or even prohibit such agreements. Employers may want to consider what alternative measures are available to protect trade secrets and customer goodwill in those circumstances and revising such agreements to comply with the jurisdiction in which the employee is working remotely.