Last March, many companies across the US abruptly shifted their employees from the Company office to remote home offices. One year later, millions of workers are still working remotely. The pandemic has elevated the importance of the physical dimensions of work. As we begin the process of returning to the workplace, it is certain that, for many businesses, it will not mean a return to the old ways of doing business. Many employees may prefer to continue working from home, while others may be feeling uncomfortable or unproductive outside the traditional work setting. Some may be experiencing the burnout of "living at work." Many may miss the collaboration and camaraderie of the office. Companies will need to face a growing demand from their employees to permit more remote work. As a result, some companies may choose to move workers to a fully remote arrangement. Some companies may continue to require the presence of employees in the office. Some companies may adopt a more hybrid model, with employees working part of the time in the office and part of the time remotely. Whatever remote work arrangements an employer permits, the employer must have a robust remote work policy that addresses a remote workforce's challenges.
So, what are the important elements of a robust remote work policy? Your remote work policy should address a few key items.
EligibilityDefine those job positions that are eligible to work remotely. By analyzing the job duties of each position, companies can decide which positions could be performed remotely. Your policy should specify the jobs that are eligible for remote work. Some jobs simply are not conducive to being performed remotely. Consider identifying those jobs right away to eliminate any future requests or inquiries. You may also want to include other eligibility requirements:
- Length of time with the Company. If you have an introductory period or want the employee to work in the office a certain amount of time before considering them for remote work.
- Performance level markers. Poor performers are not eligible, and remote workers must maintain a satisfactory performance level to remain eligible.
Procedures for Requesting AuthorizationEmployers should consider if they want to establish specific procedures that employees must follow to request authorization to work remotely. Among other things, you should consider requiring written requests, utilizing a specific Company-provided form. Will authorization be discretionary and, if so, based upon what criteria? Who will review requests? Formalizing the process may reduce the risk of inconsistent handling of requests, which could inadvertently increase the risk of discrimination claims. It is also important for employers to consider establishing a separate procedure to submit a remote work request, as a reasonable accommodation under the ADA, to properly review and address requests for ADA reasonable accommodation requests.
Expectations and ResponsibilitiesIt is also important to detail your expectations of the remote worker, as well as the responsibilities of the worker, including:
- Work schedule/maintain regular work hours;
- Overtime rules;
- Track and record work time;
- Availability and accessibility during work hours;
- Performance standards and ongoing measurement;
- Appropriate workspace setup, including ergonomics;
- Safeguarding company equipment and confidential information; and
- Data security obligations and the use of secure remote access protocols and procedures.
EquipmentRemote workers need appropriate tools to perform their jobs efficiently and effectively. Computers, email, phone conferencing, access to internal networks are all tools that employees will likely need to work remotely. Companies need to identify what equipment their remote workers need, what equipment the Company will provide, if any, as well as what equipment the remote worker will be required to supply. If your Company has specific equipment and internet connection requirements, the remote worker must understand these requirements and be able to determine if they can meet the requirements. In addition, identify the technical support you will be providing to remote workers.
Compliance with Handbook and PoliciesRemind employees that they are expected to comply with all employer policies, Employee Handbooks, including electronic communications policies.
Track Remote Workers' Compensable TimeThe FLSA requires employers to compensate non-exempt employees for all hours worked. The employer's responsibility is to exercise reasonable diligence to ensure that the employee does not perform any work the employer does not want to be performed. Employers can satisfy their obligation to exercise reasonable diligence to track working time by providing a reasonable procedure for reporting unscheduled work. A remote work policy should reinforce that:
- All employees, including remote workers, must record all working time accurately, including unscheduled work.
- Prohibits off-the-clock work unless authorized in writing.
- Falsification of time records or fraudulent timekeeping practices is subject to discipline and termination of employment.
- Managers or supervisors review and verify their direct reports' time records regularly, such as daily or weekly.
- Remote workers must verify the accuracy of their time records regularly, such as daily or weekly.
- Educate nonexempt workers on what time is compensable, including meal periods and rest breaks, preparation time (such as logging onto a computer), and waiting time.
Discrimination As with any employment decision, employers may face claims from employees that they were unfairly denied a request to work remotely. Employers can minimize the risk of discrimination claims by clearly defining and consistently applying eligibility requirements for remote work via a formalized request process.
Confidentiality and Data SecurityConsistent with the organization's expectations of information security for employees working at the office, your Company's remote work policy should reinforce the remote worker's obligation with respect to data security and emphasize the remote worker's obligation to maintain and protect the confidentiality of company proprietary information and customer information accessible from their home office. Steps the remote worker should take to do so should be addressed in your policy. If you have any questions about writing and implementing remote work policies, Moye White's Employment Group is available to answer your questions and provide guidance.
