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Barley Snyder: Remote Working: A Permanent Reality?


The COVID-19 pandemic has proven that a remote workforce may be a viable – and possibly money-saving – option for businesses and their employees. 


Since the change to remote working went surprisingly well, employees are considering continuing the arrangement when the stay-at-home orders are lifted. That said, many traps exist for employers who fail to keep an eye on the issues that accompany a mobile workforce.


Employees Want to Work Remotely

Recent polls show more than 50% of remote workers say that if it were up to them, they would continue to work from home because they prefer it. Whichever decision you make as a business, employers should develop standardized remote work plans that address business needs for when the crisis is over. 


Be Mindful of Discrimination Risks

A remote work policy cannot treat employees differently on the basis of any protected characteristic, such as age, disability or perceived disability status or national origin. It is important to note that regardless of the specific work-from-home policy in place, an employee’s request for accommodation should be considered and responded to on a case-by-case basis.


Know Where Your Remote Employees Are Working

Having an employee working in another state subjects the employer to the tax laws of that jurisdiction. The labor and employment laws of the state where an employee is actually working generally will apply as well. Employers need to understand the labor and employment laws that apply to the relationship as these laws may greatly differ between jurisdictions. The differences could include wage-and-hour rules, termination of employment, noncompetition, trade secrets and sick and family leave rules.


Manage Timekeeping and Overtime Risks

As with laws against discrimination, employers must continue to follow the wage-and-hour laws.  To avoid violating the Fair Labor Standards Act and minimize liabilities from claims for overtime pay, employers should draft a work-from-home policy, which will help establish clear expectations for employees. The policy should set out expectations and limitations regarding hours of work per day or week, and also set out specific working hours during the day. It should also require employees working flexible hours to track the hours they work each day to limit the amount of work performed and to ensure they are generally not exceeding the daily or weekly maximums.


Security and Confidentiality

The threat posed by cyber attackers for businesses is high. Remote working creates new challenges for maintaining a company’s confidential information, as conference calls may be overheard or emails may be read by unintended persons. Employers should make sure that employees are aware of company policies on confidential information and information security and, in particular, are aware of how those policies play out in a remote work setting.

Sarah C. Yerger is an attorney in the Barley Snyder Employment Practice Group. Contact her at [email protected] and at (717) 231-6612.


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