Juggling a Remote, Hybrid and/or Multistate Workforce: What Employers Should Know
At the beginning of the pandemic, large swaths of the country converted from in-person work to remote work almost overnight. And while the pandemic will eventually be behind us, remote work is here to stay. Indeed, while some employees are hesitant to return to in-person work because of safety concerns, many employees simply prefer remote work. Moreover, in a tight job market in which employers in the hospitality field have a difficult time retaining, much less hiring, employees, employers must adapt to the new normal of remote work. Adaptation, however, necessarily requires change.
Considerations for Multi-State Employers
Employers that fully embrace remote work might be tempted to search nationwide for candidates. Indeed, employers would be able to cast a wider net, and those in higher cost of living locations might be able to pay employees less by hiring in lower cost of living locations. This approach, however, creates significant obstacles for navigating employment laws.
Employers are usually subject to the laws of the states in which their employees are located and work. So, if a California hotel hires remote employees in Idaho, Texas and Arizona, it will need to be familiar with California employment laws, as well as those of Idaho, Texas and Arizona and this can be daunting. So, a company may be better off hiring remote employees who live and work in the same state in which the employer is located, thereby, casting a wider net without getting entangled in other states’ laws.
In some situations, employers can also adopt employment practices that are consistent with the most stringent state laws from which it has hired candidates. So, for example, if an employer hires employees from Texas and California, the employer might be able to adopt employment policies that are consistent with California’s more stringent employment laws. While some of the employer’s policies might be unnecessary for employees working in Texas, adopting uniform policies for all employees might be a more efficient method for managing employees. Nevertheless, employers should always remain cognizant of each state’s laws and should remain up to date on changes within the state.
Finally, employers should ensure that they stay up-to-date with discrimination, retaliation and harassment training. Employers should be able to cover most of the training – either in person or via zoom – regardless of the states in which its employees are working. If necessary, employers can also supplement this general training with state-specific training.
ADA Considerations
Employers must also confront ADA issues when assessing whether to adopt remote work. The ADA requires employers to provide qualified employees reasonable accommodations. So, if an employee has a disability, the employer should engage in a fact-intensive interactive process in which the employee and the employer search for an accommodation that allows the employee to perform the essential functions of his or her job. The employer must then provide the accommodation to the employee so long as the accommodation does not create an undue hardship for the employer.
Employers should not assume that they do not need to provide accommodations simply because an employee is already working remotely. Indeed, employees working from home may still be entitled to accommodations because of their disabilities. For example, some employees might be entitled to frequent breaks a different work schedule depending upon their medical conditions. Employers should examine carefully the unique circumstances of each request, regardless of whether the employee is working from home or on site.
It is also worth noting that remote work itself can be an accommodation for employees with certain disabilities. Additionally, if an employer permitted its work force to work remotely during the pandemic, it may be difficult denying such a request on the grounds that remote work creates an “undue hardship.” So, tread carefully when considering denying an employee’s request to work remotely because of their disability.
Wage and Hour Considerations
Employers with remote workers should be especially conscientious of wage and hour issues. Under the Fair Labor Standards Act (FLSA), employers must compensate non-exempt workers for all hours worked, including overtime and “work not requested but suffered or permitted.” The Department of Labor issued guidance clarifying that “an employer’s obligation to compensate employees for hours worked can…be based on actual knowledge or constructive knowledge of [the employee’s] work.” DOL Field Assistance Bulletin 2020-5. When employees work remotely, the employer obviously has actual knowledge of the employee’s regularly scheduled hours and can have actual knowledge of hours worked through employee reports or communications. Employers can also have constructive knowledge of additional, unscheduled hours “if the employer should have acquired knowledge of such hours through reasonable diligence.” DOL Field Assistance Bulletin 2020-5. Employers can satisfy this requirement of reasonable diligence “by establishing a reasonable process for an employee to report uncompensated work time.” DOL Field Assistance Bulletin 2020-5. The employer, however, cannot discourage employees from reporting time.
Employers with non-exempt, remote workers should, therefore, implement processes to ensure that remote workers can accurately report uncompensated work time. Non-exempt employees should then be trained (and retrained) on these processes. Employers should also provide additional training to managers and supervisors to ensure non-exempt employees accurately track the hours they work. While these tasks are no doubt time consuming, an ounce of prevention truly is worth a pound of cure.
ABOUT THE AUTHOR
Chase Hattaway is a partner in the Orlando office of RumbergerKirk. He focuses his practice on complex civil litigation matters in the areas of employment, education and casualty litigation. He can be reached at (407)839-2107 or [email protected].