By Jennifer Duggan and Susanna Matingou
In this uncertain era of COVID-19, at least one thing is sure: teleworking is not going anywhere. Our collective initial foray into mass teleworking was abrupt, mandatory, and perhaps best described as trial by fire. However, even as they re-open their doors, many employers are considering extending their teleworking arrangements into the foreseeable future. Many of our clients and colleagues have discovered employees have thrived on a 30-second commute, the ability to wear whatever they want to work (Zoom calls notwithstanding), flexible scheduling, and other morale-boosting effects of working from home. Moreover, employers have realized that there may be significant cost-savings to maintaining a smaller, more streamlined brick and mortar presence.
Now that employers have had time to catch their collective breath, many are seeking to implement more permanent teleworking policies and procedures. Below we highlight some of the key issues for employers to consider.
Prevent Wage and Hour Issues through Documentation and Close Contact with Employees
As evidenced by the explosion of wage and hour lawsuits in the past decade or so, proving that your employees took their meal and rest breaks, got paid for all their hours, and received accurate pay stubs is much easier said than done. If your non-exempt employees are remote, make it a habit to check in with them regularly, especially before and after meal and rest break times, to ensure that they are about to take their breaks or already have. Ensure that your meal and rest break policy is clear, compliant, included in your employee handbook, and preferably shows up elsewhere as well. Conduct regular time record audits to ensure compliance. If employees fail to take meal and rest breaks, it is important to consider discipline for non-compliance, as well as consider premium pay to eliminate liability. Consult with trusted employment counsel regarding documentation and other strategies that can prevent – and protect you in the event of – a lawsuit or a Labor Commissioner complaint.
Beware of the Over-Casual and Under-Dressed Worker
By now, perhaps nearly everyone has encountered video call recordings on the internet showing an unfortunate employee using the bathroom in full view of other meeting participants, or the employee who stands up to reveal a work shirt but no pants to his co-workers. Hopefully, everyone understands that mistakes can happen. However, employees who are overly casual place an employer at risk for a potential harassment claim.
Now that working from home is the norm, your employees should have had time to test their technology, position their webcam properly (or better yet, be fully dressed so that any view is fine), and understand the mute function. Because working from home is by definition more casual, some employees with less than stellar judgment may be less careful in their language, in the memes they send, and the jokes they make. Therefore, employees as a whole should be reminded of anti-harassment policies and advised that professionalism is just as important when working from home. Employers may even wish to augment their existing harassment policies to address teleworking issues. As usual, clear written policies can serve to deter improper conduct as well as show that an employer took steps to prevent harassment.
Reimbursing Employees for Expenses – And Do I Really Need to Buy Him a Chair?
Labor Code section 2802 provides that employers must reimburse employees for all necessary expenses they incur in the course of their duties. The employee who works from home will necessarily incur certain expenses that are legally the obligation of the employer. For example, internet access, a cell phone bill, printer ink, paper, pens and pencils, and the like are all examples of costs that must be partially or fully reimbursed by the employer. Even where an employee already has unlimited data on their personal cell phone plan, the courts have said that the employer would enjoy an unjustified windfall if it did not at least partially reimburse the employee. The same logic applies to an employee’s pre-existing home internet access.
Alphabet Soup for Lunch – OSHA, ADA, and FEHA Considerations at Home
Consider also that employers with 25 or more employees are required under the Americans with Disability Act (ADA), and employers with 5 or more employees are required under the Fair Employment and Housing Act (FEHA), to reasonably accommodate the serious health conditions and/or disabilities of their employees. The Occupational Safety and Health Act’s (OSHA) General Duty clause requires that employers provide a workplace free from recognized hazards. Taken together, these obligations could mean that as an employer, you may need to provide an ergonomic chair or some other modified workspace for your employee. This analysis depends on the employee’s medical condition, whether the accommodation is reasonable, and if it would present an undue hardship to the employer. However, even if not legally mandated, an employer may well determine that the cost of an ergonomic chair or a stand-up workstation is well worth the benefits of better morale, increased productivity, and avoiding a lawsuit, meritorious or not. Properly-worded written acknowledgement from the employee of adequate reimbursement is also important in mitigating risk. Experienced employment counsel can help to determine if you are properly reimbursing employees for their expenses, how far you need to go to accommodate an employee’s requests, and how to document your efforts.
Duggan Law Corporation stands with employers and is readily available to provide guidance during these challenging times. Stay well.