The Toothpaste Is Out of the Tube: Here’s How to Revamp Policies For a Workforce Unlikely to Fully Return to the Office

As many begin the process of returning to the office, millions of employees choose to continue working remotely. It is clear the pandemic may have permanently altered our perspective regarding the physical dimensions of the workplace, and companies are likely to face a growing demand from their employees to permit more remote work.

Some companies, recognizing the benefits of a remote workforce, may elect to move workers to a fully remote arrangement or to adopt a 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, it is critical that the organization have robust remote-work policies that address the challenges of a remote workforce.

What did I do all day at work before video conferencing became the norm? Is this really the “new normal”? pic.twitter.com/CDpQiH6Jgh

— Daniel K. Pearson (@danielkpearson) May 2, 2021

So, what should organizations consider when developing a robust remote-work policy?

Eligibility

You should define job positions, in part, as those that are and are not eligible for remote work. Some jobs are not conducive to being performed remotely. You should consider identifying those jobs right away to eliminate any future requests or inquiries about them.

You may also want to include other eligibility requirements, such as 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 you consider them for remote work) and performance-level markers (for example, poor performers are not eligible and remote workers must maintain a satisfactory level of performance to remain eligible).

Procedures for Requesting Authorization

Employers should consider if they want to establish specific procedures 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? If so, what criteria will it be based on? 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 Americans with Disabilities Act of 1990 (ADA).

Expectations and Responsibilities

It is also important to detail your expectations and the responsibilities of the remote worker, including:

• Work schedule/maintaining regular work hours;
• Rules around overtime;
• Tracking and recording 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.

Equipment

Remote workers need the appropriate tools to perform their jobs efficiently and effectively. Computers, email, phone conferencing and access to internal networks are all tools 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, it is critical that remote workers understand these requirements so they will know and be able to determine if they can meet them. In addition, identify the technical support you will be providing to remote workers.

Compliance with Handbook and Policies

Remote workers should be reminded that they are expected to continue to comply with all employer policies, procedures and employee handbooks, including electronic communications policies.

Compensable Time of Remote Workers

The Fair Labor Standards Act (FLSA) requires employers to compensate nonexempt employees for all hours worked. This rule applies to all workers, including remote workers. When an employee works from home, the line between working time and non-working time is not always clear. However, if an employer knows or has a reasonable belief work is being performed by a nonexempt employee – including overtime – the employer must count the time as hours worked and compensate the employee appropriately. It is the employer’s responsibility to ensure that the employee does not perform any work the employer does not want to be performed.

The FLSA requires employers to keep records for nonexempt employees, including records of hours worked each workday and workweek. This is required for all nonexempt employees, but it is especially important for remote employees because they are not physically present in the workplace. In addition, there may be state wage-and-hour laws that impose additional or different requirements.

The Department of Labor (DOL) has issued guidance that employers can satisfy their obligations under the FLSA by exercising reasonable diligence in tracking compensable time worked by employees who telework or otherwise work remotely.

Employers can satisfy their obligation to exercise reasonable diligence to track working time by providing a reasonable procedure for reporting unscheduled work.

Based upon the DOL’s guidance, employers should take steps to ensure they maintain accurate records of and properly pay their nonexempt remote workers for all hours worked. Steps you may want to consider taking include:

• Reinforce that all employees, including remote workers, must record all working time accurately, including unscheduled work;
• Clearly state that off-the-clock work is prohibited, unless authorized in writing, and have managers exercise their control to see that work is not performed at home if the employer does not want it to be performed;
• Provide a reasonable procedure for reporting unscheduled work;
• Advise employees that falsification of time records or fraudulent timekeeping practices is prohibited and any violation subjects the employee to discipline up to and including termination of employment;
• Require managers or supervisors to review and verify the time records of their direct reports on a regular basis, such as daily or weekly;
• Require remote workers to verify the accuracy of their time records on a regular basis, such as daily or weekly; and
• 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.

A reporting procedure is not reasonable if an employer:

• Prevents or discourages employees from reporting working time;
• Does not provide proper training on the procedure; or
• Requires employees to waive their right to compensation for hours worked.

Employers are not required to take impractical steps to identify unreported work if employees do not use the available reporting procedure and the employer is not otherwise notified of the additional work time.

Discrimination

As with any employment environment, employers may receive complaints from employees that they were subject to discrimination as remote workers. While you might think that workplace harassment and discrimination are only a problem when employees are together in one location, such claims could arise even in a remote-work environment. Those risks may be heightened in some ways when working from home, given the potentially blurred lines between employees’ personal and professional environments, including relaxed dress codes; office meetings in spaces such as bedrooms, kitchens and other private spaces that would not normally be shared with coworkers; and the presence of family members and household pets during conference calls. These factors, coupled with the general stress and potential isolation associated with living through a global pandemic, can give rise to a markedly different atmosphere – and the mistaken belief among some employees that policies and procedures governing professional conduct in the workplace may not apply to the remote-work environment.

As an employer, you are responsible for ensuring that the workplace is safe, respectful and free of sexual harassment and other forms of discrimination – even if the workplace is your employees’ homes. Remote workers may still experience harassment and discrimination through video platforms, emails, text messages or chat apps. For example, an employee might indecently expose himself or herself during a videoconference. A manager or co-worker, believing their sound is off on a video stream, may make racist or sexist remarks. Advising your employees that behavior that would not be tolerated in person is similarly unacceptable in a virtual environment is critical.

To avoid potential problems, make sure your expectations are clear. Advise your employees that:

• Sexual harassment and illegal workplace discrimination policies also apply in a remote-work environment.
• They should treat one another respectfully, whether interacting with each other in person, via the internet or on the phone.

In addition, employers should seek to minimize the risk of discrimination claims by clearly defining and consistently applying eligibility requirements for remote work using a formalized request process. Employers may face claims from employees that they were unfairly denied a request to work remotely. As a result, employers should:

• Clearly define the employees eligible to work remotely (full-time versus part-time, only certain positions, etc.).
• Consistently apply these limitations when granting or denying requests to work remotely (but you should have a specific and separate procedure for remote-work requests that are requests for reasonable accommodation under the ADA).
• Establish a procedure for submitting written requests to work remotely and designate how and to whom those requests should be submitted.
• Train managers on how to handle requests to work remotely and the importance of responding consistently to these requests.

Importantly, continue to provide your employees with the same support and opportunities for advancement as your in-office workers. Advise your remote workers of your expectations regarding work performance and productivity. Maintain frequent and open communications with your remote workers. Consider setting regularly scheduled check-in meetings to monitor your employees’ status and progress. Review the tools and support you are providing your remote workers to ensure they are not disadvantaged in their ability to perform their jobs. In addition, assess the methods and standards you are using to evaluate remote worker job performance to ensure that remote workers are not disadvantaged.

You should also periodically remind employees that your harassment and discrimination complaint reporting procedures still apply even when employees are working from home.

Specifically, consider:

• Reviewing your harassment and discrimination reporting policies and procedures with your employees;
• Discussing how to effectively utilize these procedures while working from home;
• Discussing potential scenarios that you anticipate could constitute harassment or discrimination in a remote-work environment;
• Reminding your employees to report incidents of harassment or discrimination they see or experience;
• Giving your employees the chance to ask questions; and
• Training your managers to be proactive and vigilant on reminding employees of the law and your policies, investigative tools they can use for remote workers, and identifying and handling potential remote-work issues.

Finally, just as you would in an office environment, encourage a culture of professionalism and respect in the remote workplace.