Through a partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” article. Each week, we will feature a new question, from you, our members, related to workplace issues and topics that will be answered from our experts and partners at Littler.
This week’s question comes directly from a recent advisory board meeting and concerns legal considerations and obligations around telework.
Question: What are the legal considerations for employees who are now working remotely? What is our company responsible for paying for related to the work these employees are performing now out of their home offices?
Answer by Will Vail
Employers with employees working remotely should strongly consider creating a policy that addresses all of the potential issues the parties may face. One big issue is whether an employer must reimburse for expenses relating to working from home. In some states, like California and Illinois, employers are required to reimburse these expenses. California’s statute is the most restrictive and has served as a model for others. It requires employers to reimburse “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of duties or obedience to the employer’s directions.” Although the law is not entirely settled, only California courts have held that an employer should reimburse a reasonable percent of the expense for things used to perform the work, even if the employee would have incurred the same expense without having used the item for business (i.e., no incremental cost to employee such as existing home internet or use of personal cell phone that is on an unlimited plan). The Illinois statute permits employers to set certain guidelines and specifications that may limit reimbursement liability.
Related question: How can I best track time and attendance for remote workforce employees?
A Telework Policy defines the essential components of remote timekeeping for non-exempt employees: a specific schedule, requirements for clocking in and out, mandatory tracking for required meal and rest breaks, and a prohibition against working off the clock. The Policy also should make clear that the Company’s broader timekeeping and overtime rules apply; these policies can be evaluated and fine-tuned as needed. The need to define meal and rest period obligations also will vary from state to state.
Telework also raises challenges related to compensable travel time. If non-exempt employees can work from a home office and from an employer’s office, the time spent getting from one location to the other in the course of a day might be transformed from a non-compensable home-to-work commute to a compensable trip from one worksite to another. For this reason, employers should consider directing non-exempt employees to work in only one work location each day or, if developing a specific program involving multiple work sites in a day, work directly with wage and hour counsel to develop programs to address potentially compensable travel time.
Before advancing a robust telework policy, employers should ensure that there is appropriate infrastructure for the logistics of accurate timekeeping: If a timekeeping system is used, are adjustments required so it will function properly remotely? If timesheets are used, how will they be returned by remote employees, and reviewed and approved by managers, and how will revisions be verified by the employee when teleworking? Are there reliable methods for cutting off access to work materials outside scheduled working time, to prevent off-the-clock work by non-exempt employees?
Finally, as with all wage and hour topics, robust training for managers supervising non-exempt employees working remotely is strongly recommended. Out of sight does not translate to out of mind. Managers can be trained to recognize the potential Company perils brought about by remote-working non-exempt employees, in particular such risks that the managers can possibly prevent – e.g., by not sending emails to non-exempt workers after hours, not reducing time on a timesheet without a clear record of the reason and agreement from the employee, and more.
At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.
About Will Vail, Special Council
William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations.
Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns.
William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta.
*Not licensed to practice law in Georgia