Godfrey & Kahn Updates
Managing remote and telecommuting employees: Formalize everything in writingSeptember 10, 2020
Remote work vs. telecommuting
First, it’s important to clarify the difference between remote employees and telecommuting employees: the difference lies in whether the employee will or will not be required to report to a corporate office from his or her remote work location on a regular basis to attend events, meetings, etc.
- If the expectation does not apply to the employee, then the employee is considered working under a remote work arrangement.
- If the expectation does apply, then the employee is considered working under a telecommuting arrangement.
Does it matter from a legal standpoint? In short, yes because the potential legal issues associated with each arrangement differ and should be addressed accordingly.
Key provisions for remote and telecommuting work agreements
When documenting your remote or telecommuting work arrangements, be sure to consider the following provisions:
Set expectations for both the supervisor and the employee. Be sure to cover:
- Office location with description
- Anticipated duration of the arrangement
- General work schedule and hours, leaving flexibility to adjust based on business needs
- Expectations for availability
- Technical support hours offered
- Any required attendance for training and meetings
- Work plan and work plan review schedule
- Timekeeping requirements
- Reporting requirements and who to contact in the event of an emergency or issue
Compensation and benefits
The agreement should either confirm benefits and compensation will not change with this new arrangement, or, if it will change, the specific modifications.
Most importantly, the arrangement should make clear that non-exempt employees must accurately report all hours worked, that remote work/telecommuting is not a substitute for paid time off, leave, etc. and all employer policies regarding work time, leave, paid time off, etc. apply to the employee. Advise employees that the work arrangement can be cancelled if they fail to adhere to these requirements.
Equipment and supplies
Employers vary greatly in terms of the level of equipment supplied and maintained for remote and telecommuting workers. As an example, for highly regulated employers issuing a company computer that has all necessary security measures is critical. Whatever the situation, make sure to cover:
- Internet and other equipment requirements
- What equipment is supplied by the company
- What equipment is supplied by the employee
- Who is responsible for equipment maintenance
- That the employer is not liable for any damage to or loss of any employee-supplied equipment
- Who is in charge of obtaining supplies
- What expenses are reimbursable and how submission should be handled
Remember that some state and local laws require employers to reimburse employees for all expenses incurred for their work. Be certain to confer with legal counsel regarding legal obligations to reimburse employees for expenses.
An employer’s standard information security policy in most cases is not enough to address remote and telecommuting work arrangements. Cybersecurity is of utmost importance to employers and any changes to the general policy should be addressed.
Health and safety
Both federal and state health and safety regulations apply to remote workers, including Occupational Safety and Health Administration (OSHA) and state workers’ compensation laws. It is, therefore, key for employers to:
- Conduct a safety checklist review with photos of the office
- Detail when and who should receive any reports of injuries
- Affirm obligation of the employee to keep the designated work area free of hazards
- Remind employees of their obligation to report all work time injuries consistent with your workers compensation and safety policies, even if they occur at the remote worksite
Dependent care, PTO and medical leave
While it seems obvious, many employers are caught off guard by remote or telecommuting employees who, after the fact, inform the employer of time they have engaged in dependent care (for children, parents or others). Be sure to set expectations and cover the following:
- Remote work is not a substitute for care of dependents
- If time off is needed the employee must designate the time off consistent with company policy
- Employees are required to meet the same performance expectations while working remotely
Zoning and taxes
Many employers and remote or telecommuting employees do not realize that operating and working out of different states could raise tax issues. Employers will want to make sure that any agreement clearly states that the employee is responsible for taxation issues due to the use and location of the remote office.
Termination of the work arrangement
Remote employees may claim they were promised a remote or telecommuting position indefinitely. Be clear that the employee remains an employee at-will and the parties can terminate the arrangement at any time and for any reason. This will allow the employer the legal flexibility it needs to pivot based on business needs.
Next up: Cybersecurity for remote and telecommuting employees
The next article in this series will cover cybersecurity issues associated with remote and telecommuting employees.