The COVID-19 pandemic may have permanently changed the future of work. From banking to insurance and the legal industry, employers have embraced remote work for employees. Before March 2020, many companies allowed only a select few people to work remotely—typically exempt employees who travel. Now, they’re permitting more employees to work from home. Some businesses like Nationwide Insurance are reducing their office footprint as they let more people stay home. Before you allow more employees to telework, however, please continue to our blog for some important employment law aspects to consider.
Establish Policies Based on Clear Criteria
First, you must have a plan and specific policy in place addressing the remote workforce. The plan should identify which workers may work remotely and establish guidance for the work. In establishing who may work remotely, be mindful of discrimination laws to ensure there’s no selection that could be viewed as biased.
Your remote workforce policy should address security, expectations, and workload issues. Study each job that will be allowed to happen remotely to be sure the standards and expectations are reasonable. You should base eligibility for the remote work on clear criteria and reserve the right to terminate the policy at your discretion.
In implementing a remote work policy, you should:
Employers also should consider other, more complex issues. For instance, you may need to strengthen the payroll function so more complicated employer tax withholding requirements are appropriately satisfied. That is a common challenge for employers that have historically needed to address federal, state, and local income withholding in only a few jurisdictions.
Across the country, state withholding requirements are quite varied, so moving to a remote work set-up with employees working from multiple states introduces complications. Scenarios with multiple state requirements typically need some analysis before implementing the withholding. You should contact counsel if those types of issues arise.
Establish Where Employees May Work
As a part of remote work, you may want to limit employees to working from their primary residence, i.e., in their own home that’s in the same city or state as your company’s office. Employees, on the other hand, may want to work from a vacation home or a location farther from their “home” office.
Employee expansion into a new location may trigger legal issues because some jurisdictions may see people working there as establishing a legal presence for the employer. Before allowing remote work in new jurisdictions, you should consider the following potential legal issues:
The problems with remote work become more complicated if employees are doing their jobs in locations outside of the United States, where obligations to set up collective representation, requirements for hiring employees in protected categories, and termination protections may apply.
Also, employees working from home in a particular state or jurisdiction may constitute a presence of the employing entity in that location for corporate tax purposes. You should communicate to employees that they may be responsible for changes in their individual tax consequences because of relocations made in connection with a remote work program.
In addition, consider the impact remote work may have on other employment laws (including antidiscrimination and antiharassment), information technology resources and communications systems, data privacy and other confidential and proprietary information, and workplace safety.
All of the issues should be investigated with counsel before a remote work policy is published. That way, you can ensure the company (1) will be able to meet additional legal requirements if allowing remote work from a wider geographic area or (2) should set the policy to exclude remote work from certain areas or from all areas outside the current operating locations.
Communicate with Your Employees
Finally, communicate openly with employees about the application process and eligibility for remote work along with your associated expectations. As with other employee “benefits,” you must keep in mind that once a remote work policy is implemented, it will be difficult to retract. Absent firm guidelines for applying the policy, it will be difficult or impossible to reject remote work requests falling outside of its purview, so careful thought must go into formulating it.
Big Picture
In summary, to transition to remote work more seamlessly:
While establishing a remote work policy may seem burdensome and unnecessary, the uncertainty of the coronavirus pandemic may mandate the considerations moving forward, and some companies may decide the benefits of reduced office space leasing outweigh the upfront costs. With careful planning, the establishment of clear policies, and open communication, you can prepare more easily for a remote workforce if and when the circumstances justify.
Article provided by content partner BLR. Authors Gene R. La Suer and Maggie A. Hanson are attorneys with Davis Brown Law Firm in Des Moines, Iowa. .