By: Stephen Scott, Fisher Phillips
Three days a week, I tie my shoes, throw on an oversized backpack with a change of clothes, and start my run to work. It is a meditative process that is utterly exhausting. Candidly, the only reason I am able to commute this way is the firm’s shift towards a hybrid-working model.
The reality is I am not alone. For more than two years, countless employees have worked remotely from the comfort of their homes and have not stepped foot into an office. Although some debate its benefits, there is little doubt that it is the future of work for many industries. Businesses that do not offer remote work (or some hybrid version of it) face the possibility that employees will leave for an employer who does.
Here are six steps that employers can take mitigate some of the risks associated with remote work. Given that long legal lists are sometimes hard to remember, I have broken them down and compared them to my running preparation:
Grab running shoes (decide which jobs can be remote): Determine which positions will be allowed to be fully remote in another state. If employees will be required to visit an office location from time to time, who is going to pay for that travel? Under the law, a business may have to.
Decide on a route (approve remote locations): Decide where the business is going to hire or allow current employees to work remotely. For instance, a business may not want to hire an employee in a different time zone. Some states and cities are more difficult for employers than others (for example, after a Montana employee’s probationary period ends, the person cannot be terminated except for “cause”). Consider whether the burden of compliance in a certain city or state is outweighed by the value the employee would bring to the business. And don’t forget about non-U.S. locations. Many employers are getting requests from employees seeking to work remotely in other countries. Laws in other countries are often far different than ours – sometimes in very surprising ways.
Stay on the sidewalk (conduct a legal job search): Ensure compliance in hiring practices. Many states and cities have protected characteristics in addition to those under federal law. Many also have “ban-the-box” laws prohibiting employers from asking applicants about criminal history as well as salary history. Some states and cities even require employers to post salary ranges for positions in job advertisements. With that said, a business should decide whether it will pay a remote employee who currently resides in NYC the same as if the person worked remotely like rural Wyoming, where the cost of living is much less.
Avoid dangerous areas (hire properly): Confirm the business is following all state or local wage and hour laws. Keep in mind that minimum wage and overtime rules for nonexempt employees as well as salary thresholds for exempt employees differ throughout the country. Ensure that arbitration or restrictive covenant agreements are compliant in the remote jurisdiction. And check to see if there are any laws on reimbursement of employee expenses, especially given employees will be using their own internet, electricity, etc.
Obey traffic laws (comply with local tax and insurance rules): Work with accountants to set up taxes correctly. Some states have family leave and disability insurance programs that require employers to deduct from employee wages and/or contribute to a state-run fund. Make sure the business has enrolled in the state unemployment insurance programs and confirm that workers’ compensation insurance is compliant. Also investigate whether a business registration is required when at least one remote employee is working in a state.
Shower (provide employee notices and training): Distribute any required employment law postings to remote employees. Also review whether the state requires specific provisions be included in the employee handbook or other notices. It is highly recommended that employers draft and distribute state handbook addenda covering the pertinent state or local leave and other employment laws. Some states and cities also have mandatory anti-harassment training laws for employees.
While employment laws differ from state to state and even city to city, the common thread is that non-compliance can lead to costly and time-consuming lawsuits. While managing employees in new locations may present challenges for your business, sometimes offering remote work may be the competitive advantage you need in the current job market.
Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8094 or firstname.lastname@example.org.