COVID-19 Remote Worker Legal Pitfalls to Watch For
Management

COVID-19 Remote Worker Legal Pitfalls to Watch For

The COVID-19 crisis is fast becoming the ultimate game-changer, turning many things, especially business, on its head. In response, many companies – including our own – are implementing work-from-home-arrangements for employees, so they can keep things running.

Along with all the cautions about online scams and email phishing, another pitfall awaits: It’s possible that without a legally sound remote work policy, your efforts can unexpectedly create big legal problems for you in the not so distant future.

To prevent this although it may seem like an extra nuisance you don't want to deal with right now creating an airtight policy – one checked by your attorneys – is a must.

Not only will sound work-from-home policies keep employees on track while working offsite, but they’ll help avoid potential legal problems that can arise from remote work all too easily and that those new to it are often completely unaware of.With this in mind, here is a look at some legal pitfalls you’ll want to look out for when drafting such a remote work policy.

FLSA Violations.

One of the more obvious problems with remote employees is it’s hard to know how many hours they’re actually working out of the office.

If your workers are salaried and exempt from overtime, this isn’t a big deal: they’ll get paid the same regardless of how many hours they put in at home. But if your employees are paid by the hour and are eligible for overtime, FLSA violations could be one punch of the time clock away.

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Even if you instruct your employees to not exceed 40 hours a week, they still must be paid overtime if they do. And keeping tabs on their activity is significantly more difficult when they’re out of the office.

But there are ways you can keep them on track. At the start of each remote day, ask what the employee will be working on, with whom, and what hours they’re active.

Another good idea is setting hours when no employee should be checking email or logging onto their computers, or doing any other common, work-related activities and make it clear that if they choose to do so, they will not be reimbursed for that time.

On the flip side of that ensure that all team leaders are aware of this and do not send messages or expect work during these unpaid hours.

Discrimination/Disability Issues

Remote workers can easily become “out of sight, out of mind” employees. But this undesirable management habit can have serious fallout. For example, say your remote workers are primarily women caring for their children and disabled employees who need to work from home as their ADA accommodation.

If you don’t offer these remote workers the same support and opportunities as others – say single employees with no children – you could be faced with sex discrimination and disability discrimination lawsuits.

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Work Environment Obligations.

Just because an employee isn’t working in the office doesn’t mean an employer isn’t responsible for their health and safety.

Before granting an employee permission to work from home, an employer should determine remote workers’ environments are suitable for getting the job done and don’t pose any undue risk. Remember: If an employee gets hurt on the job, even if they aren’t in the office, the employer could still face legal consequences.

Data Security Concerns.

When employees start doing business outside the office and on mobile devices, a whole host of new security concerns pop up.

To help control potential breaches, it’s best to restrict remote employees’ ability to print or download confidential documents.It’s also a good idea to remind remote workers of the security dangers of working in public spaces, although that is unlikely to be an issue in the current lockdown climate.

General Rules

While these are the areas that tend to get employers into legal trouble, here are some more general-rule-areas every good policy should cover.

Availability: Availability expectations should be outlined in the policy. Whether it’s instating a blanket 9 a.m. to 5 p.m. work requirement, or letting employees set their own schedules, either should be put in a policy.

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Responsiveness: Define whether a remote employee is expected to respond to a co-worker immediately, and also specify what modes of communication should be used. And when doing so keep our earlier point about paid hours top of mind.

Measuring productivity: Remote work policies should specify how an employee’s productivity will be measured.

Equipment: Remote workers need the right tools to complete their work. Therefore, companies need to state what equipment they are willing to offer to these employees. If they expect employees to provide their own computers, for example, then they need to specify that. However, as these are extraordinary times you may need to be willing to provide these items as a company, as having them was probably not part of 'the deal' when an employee was hired.

Tech support: Specify what tech support will be offered to remote workers. Outline what remote employees are expected to do when having technical difficulties, so there is a plan of action.

Security: When information is taken out of the office, security is not guaranteed. Employees need to be extremely careful when doing work in public and rules must be put in place to guarantee electronic security and proper disposal of paper.

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