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Editor's Note: Employers around the globe are recognizing the value of offering employees the opportunity to work remotely, whether on a set schedule or on an ad hoc basis. From reducing carbon footprints to increasing productivity to retaining talent, the benefits to remote work are seemingly endless. However, when eager employers rush to implement remote work policies (or, worse, allow remote work without any policies or guidelines in place), those employers open themselves up to legal risk. While no Company can eliminate all potential liability, there are certain steps and processes employers can follow, and policies/procedures they can implement, to reduce risks associated with remote work arrangements. This checklist provides suggestions for the design of a remote work policy. Every Company's culture is different, and there isn't a one-size-fits-all policy. In addition, employers need to be cognizant of not only federal law, but also of applicable state and local laws that might affect policy design and implementation of the remote work arrangement.
Contributed by Kelly S. Hughes, who is a Shareholder at Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
⃞ Current practice
o Does the Company currently allow some employees the opportunity to work remotely despite not having a written and/or formal remote work policy?
o If so, who is working remotely? (C-suite only? Executives? Exempt employees?)
o Has the Company conducted an audit to determine any issues that have arisen with respect to those employees who are already working remotely?
Comment: Depending upon the industry and/or positions involved, different issues and challenges are presented. Before implementing a formal policy, a Company should consider reviewing data and information (including anecdotal information) regarding Company-specific issues that have arisen so the Company can proactively consider how to address those issues in a formal written policy.
⃞ Top leadership buy-in
o Does the Company have buy-in from the top leadership with respect to establishing a formal policy for remote work?
⃞ Legal and logistical issues
o Is top leadership aware of the legal and logistical considerations associated with implementing a formal remote work policy?
Primary Issues to be Considered:
⃞ Performance Management
o How does the Company currently assess performance management of employees in various positions?
⃞ Data protection
o Does the Company currently have a robust data protection policy in place, both with respect to the Company's data but also the data of any Company clients or customers?
o Similarly, does the Company have technology in place to facilitate remote work of employees while protecting confidential personnel information, trade secrets, proprietary information, and the like?
⃞ Equipment and business expenses
o What types of equipment are necessary for employees to do their jobs, and what additional equipment or business expenditures would be involved in establishing formal remote work arrangements?
o Does the Company plan to require employees to have internet service, cell phones, and the like?
o Are employees currently using personal devices for business purposes?
o Are there applicable state or local laws requiring reimbursement for certain expenses?
⃞ Wage and hour issues
o Does the Company plan to allow exempt and nonexempt employees the opportunity to work remotely?
o Does the Company already have solid policies in place with respect to overtime, meal and rest breaks, and recording all hours worked?
o How do employees currently record hours worked, and is that technology adept for remote usage?
o Does the Company have the ability to audit whether non-exempt employees are working off the clock (e.g., comparison of clock-in times vs. time of accessing critical work systems)?
o If so, does remote work present obstacles to this audit trail?
o Does the Company currently advise employees on their time sheet that it is Company policy to pay for all time worked, that all worked time must be reported, and that no manager has the authority to direct otherwise?
o Will employees be working remotely in a state different than the state of their traditional office?
o If so, are different overtime laws, leave laws, or minimum wage laws implicated?
o Has the Company reviewed applicable wage and hour laws regarding compensability of travel time and other expenses the employer knows that the employee will incur on behalf of the Company, depending upon the specific remote work arrangements?
⃞ Safety issues
o Has the Company considered OSHA and workers’ compensation issues that may arise from remote work?
o How does the Company plan to address those issues?
⃞ Tax considerations
o Has the Company reviewed applicable state/local laws to determine any tax implications remote work may have on the Company?
⃞ Corporate tax and sales and use
o Would the Company be required to file business tax returns in the state in which it has no office but from which an employee works remotely?
o Are any additional business licenses or permits required?
⃞ Payroll taxes
o Has the Company considered payroll tax implications, unemployment contributions, and other issues that may arise from a remote work arrangement?
o Does the Company need to register for payroll tax withholding accounts?
o Has the Company considered how it will allocate income tax withholding between or among jurisdictions if required (i.e., employee work location tracking)?
o Has consideration been given to the impact of state long-arm statutes?
⃞ Possible tax credits
o Has the Company researched availability of tax credits for employers with remote-work-related expenses and/or for employers that allow telecommuting (such as credits for reducing carbon footprints)?
⃞ Consistency of implementation
o Does the Company envision a policy that requires a centralized group of individuals making decisions on the approval process of various arrangements, or does the Company plan to give individual managers discretion to approve remote work arrangements at the local level?
o How does the Company plan to ensure consistency among similarly-situated individuals with respect to approval, monitoring, and possible termination of the remote work arrangement?
⃞ NLRA considerations
o Does the Company have a unionized or partially unionized work force? If so, is the opportunity to work remotely an issue subjected to a collective bargaining agreement, or has the employer retained the right to establish remote work policies?
Action Items before Policy Rollout:
In addition to exploring the above-listed questions, the Company has several critical action items before drafting the remote work policy:
⃞ Review and update all job descriptions
Comment: Job descriptions are critical both from the business standpoint but also from the employment law standpoint. Many times, job descriptions don't accurately represent the day-to-day work employees actually perform. Essential functions of each position should be identified, as should any required pre-requisites for the position. Note, however, that if a pre-requisite is listed as required, ensure that all individuals in the position currently meet those required pre-requisites and that future hires similarly meet the required pre-requisites. In addition, if physical presence in the workplace is required for performance of essential job functions, consider explicitly stating this fact in the job description. Companies also should consider requiring employees to review and sign-off on written job descriptions, as well ensuring that copies of job descriptions are easily accessible to all employees for future reference.
⃞ Review and update all written employment policies
Comment: Companies need to ensure that employees abide by all Company policies, even when working remotely. Applicable employment laws change frequently, and it is advisable to revisit and update employment policies and employee handbooks regularly to ensure compliance and clarity.
⃞ Coordinate with key IT personnel
Comment: To ensure existence and/or implementation of sufficient remote security protocols and processes, including with respect to permissions, device management of primary (laptop, smartphone) and secondary (ability to insert flash drives, upload to cloud, etc.), remote access, remote wiping, firewalls, and the like.
⃞ Consider whether the Company wants to collect, measure, and analyze data regarding the costs/savings associated with remote work
Comment: If so, explore and design how the Company will capture and measure the data. For example, can the Company tie the remote work policy to increased employee retention, higher levels of recruiting skilled talent, office space savings, technology/equipment costs, etc.?
⃞ Determine the extent to which the Company's existing payroll tax footprint will need to be expanded to accommodate additional jurisdictional reporting, the administrative costs associated with such expansion
Comment: For example, registration costs and potentially additional payroll headcount), and how payroll tax processes will need to be adjusted.
Drafting the Remote Work Policy:
Companies should consider including the following provisions in a written remote work policy:
⃞ Objectives/purpose/definition of remote work
o Briefly outline the objectives/purpose of the policy
o Define or describe the types of remote work arrangements for which employees can apply. For example:
o Remote work one or more days a week on a set date(s) (i.e. every Monday)
o Remote work one or more days a week on fluctuating dates
Comment: Note that not every position is conducive to remote work and that this policy doesn't guarantee any employee the right to work remotely. Situations will be assessed on a case-by-case basis consistent with this policy and relevant business considerations.
⃞ Eligibility factors
o Service requirements
o Does the Company want to limit remote work to employees who have been employed for a certain length of time (such as one year), or does the Company want to offer remote work to new hires as well?
o Performance requirements
o If the Company has performance ratings at various levels, does the Company want to limit remote working arrangements to those who have achieved minimum objective performance ratings?
Comment: Consideration of this factor should be analyzed in the context of the Company's performance management system.
o Position requirements
o Does the Company want to explicitly identify certain positions that aren't conductive to remote work under any circumstance?
Comment: If so, ensure that the policy states the list is nonexhaustive; otherwise, this factor can be reserved for the subsequent analysis.
o Exempt status
o Does the Company plan to limit remote work to exempt employees only? If so, explicitly state that eligibility factor.
Comment: Ensure that all employees are properly classified as exempt or non-exempt. If not, then ensure policy explicitly requires that all time worked must be reported.
⃞ Application procedures
o Tell employees where they can find the application and how/to whom completed applications should be submitted
o Provide employees with information regarding the timeline for processing requests and how employees will be notified of approval or denial of requests
Comment: Consider outlining who will in the Company will be involved in reviewing applications and the levels of internal review before decisions are made.
⃞ Factors for management to consider when approving/denying requests
o Outline a non-exhaustive list of primary factors the Company will consider when reviewing applications
o One great source of potential factors is the Equal Employment Opportunity Commission (EEOC) web page discussing remote work as a reasonable accommodation under the Americans with Disabilities Act (ADA) https://www.eeoc.gov/facts/telework.html. This page includes some of the following suggested factors for consideration:
o Whether essential job functions can be performed outside the traditional brick-and-mortar workplace;
o Whether the employee can be supervised adequately and whether any duties require use of certain equipment or tools that can't be replicated at home;
o Whether there is a need for face-to-face interaction and coordination of work with other employees;
o Whether in-person interaction with outside colleagues, clients, or customers is necessary; or
o Whether the position in question requires the employee to have immediate access to documents or other information located only in the workspace.
⃞ Appeals process for denied requests
o The Company should outline the process for challenging denied requests
⃞ Incorporation of other Company policies
o The policy should remind employees that all employees – whether working in the workplace or remotely – must comply with Company policies, and incorporate those important policies by reference.
Comment: For example, hours worked policies, equal employment opportunity policies, anti-harassment policies, confidentiality/trade secret protections, data protection policies, and the like.
⃞ Information regarding expectations for setting-up home offices and ergonomics
o Identify what equipment, furniture, desk supplies, etc. will be provided and what won't be provided
Comment: Some states have or are starting to consider legislation requiring employers to cover costs of remote-work-related business expenses. Employers should review applicable state laws to ensure compliance in this regard and consider drafting policies to comply with same.
o Provide employees with information regarding tips on setting up a home office space, addressing security issues, health/safety issues, and the like
o Consider training employees on ergonomically-correct work stations and make sure employees understand their obligations to report any injuries sustained while working remotely, as well as the proper channels to do so.
Comment: Some employers require that employees consent to Company inspection of home offices as a condition of permitting the remote work arrangement (or otherwise acknowledge that the Company may request the opportunity to inspect a home office), while many employers simply require employees to certify that they have a dedicated home office work station and require the employees sign-off on a home office safety checklist. Note that currently, OSHA won't conduct inspections of employees’ home offices. In addition, OSHA won't hold employers liable for employees’ home offices, and doesn't expect employers to inspect the home offices of their employees. However, employers who are required under the OSH Act to keep records of work-related injuries and illnesses still must keep records of those injuries and illnesses regardless of whether they occur at the traditional office or a home office. In addition, keep in mind applicable workers’ compensation laws; generally speaking, employees injured within the course of and arising out of their employment may have compensable claims (even if those injuries occur in a home office).
o Outline requirements and policies for protecting Company equipment and data, as well as client/customer data
⃞ Device and network security
o Address issues such as secure network usage, storage of confidential data (both hard copy and electronic data), and the use of Company-issued devices (as opposed to personal devices), firewalls, remote access/wiping permissions, etc.
o Hard-copy documents: employers may want to require storage of such documents in locked filing cabinets or in a locked home office
o Company-issued devices: employers may want to remind employees that no other individual (including, but not limited to, family members, visitors, etc.) other than the employee should use or have access to these devices
⃞ Performance expectations
o Remind employees that employees are expected to meet performance expectations regardless of where work is performed
o The Company should also make clear any expectations regarding core work hours, leave scheduling, attendance, and availability
o Explicitly note that working remotely isn't a substitute for dependent care or other caregiving responsibilities
o In addition, employers should outline for employees how often the Company requires that employees report to the regular worksite, and employees should be explicitly advised that they may be required to report to the traditional office space in deviation from their scheduled remote work arrangements (such as for business or client meetings, training sessions, etc.)
⃞ Reassessments of continued suitability after initial approval
o Remind employees that the initial approval of the remote work arrangement doesn't guarantee permanency or continuation for any specific period of time (see disclaimer below)
o The Company should consider whether it wishes to review status of remote work arrangements at set intervals (such as every 6 months) or whether there are certain triggers that will require review and reassessment (such as changes in job duties, performance issues tied to the remote work, etc.)
o Explicitly state that the Company retains the sole discretion to amend or terminate any and all remote work arrangements at any time
o Also, notify employees that, if they are seeking a remote work arrangement as a reasonable accommodation for a disabling condition, they need to notify the Company of this need through the processes outlined in the Company handbook or policy for requesting accommodations under the Americans with Disabilities Act.
Comment: Depending upon the circumstances, reasonable accommodations may include modifying Company policies, such as the remote work policy.
⃞ Related paperwork
o In addition to the policy itself, Companies should prepare any related paperwork – including, for example, a short application for remote work, an internal checklist or guidance for managers reviewing and considering applications for remote work, a remote work agreement, and appeal paperwork for instances in which applications for remote work are denied.
The Rollout and Final Notes
⃞ Communicate the proposed/upcoming policy to managers, supervisors, HR, and payroll
o Perhaps consider a brief mandatory webinar to:
o explain that the Company expects all managers to support and consistently implement this policy;
o review the policy language itself, including eligibility requirements, factors the Company will consider in approving/denying applications, and
o provide guidance/training to those individuals who will be making approval decisions
o Training to decision-makers should involve an overview of key employment laws, such as the ADA, Title VII, ADEA, GINA, FLSA, FMLA, NLRA, etc., and any impact those laws have on remote work arrangements
o Training on protection of confidential information and trade secrets consistent with Company policy and protocols
⃞ Communicate the proposed/upcoming policy to the broader employee population
o Consider how the Company typically apprises employees of policy changes
o Does the Company usually send out PDFs of Company policies via email?
o Does the Company have an intranet where policies are hosted that is accessible to all employees (including employees who may not have Company email addresses)?
o Provide employees copies of or access to the policies as well as related paperwork
o Use this opportunity to remind employees of other policies currently in place and expectations that those policies will continue to be enforced
o Designate a Company representative to address questions about the policy and provide contact information for this Company representative
⃞ Maintain a centralized database of information related to all remote work applications and arrangements
⃞ Stay apprised of required notices that various laws/agencies require be posted in the traditional brick-and-mortar workplaces
o Ensure that employees working remotely are provided copies of these policies (preferably both hard copies as well as electronic PDF copies)
⃞ Conduct yearly audits of devices, access, permissions, and security policies