“Working from home,” “teleworking,” “working remotely.” Call it what you will, the concept has always been troublesome for employers. COVID-19 has forced employers to reconsider this concept, which has become essential for many businesses. Whether you find yourself with an unexpected army of virtual workers because of the pandemic, or you continue to field periodic requests for accommodation, here are a couple of things to consider as you navigate this issue.
Remote working environments
Remote working environments take many forms — from kitchen tables to dedicated home offices to spare nooks and crannies of all sizes. (I spent one particularly interesting afternoon working in the front seat of my car, parked in my driveway, in mid-June, while my kids had the run of the house and my husband participated in video conference calls in our converted garage space.) Space does not necessarily dictate productivity. And these days it may be more difficult to justify a requirement to maintain a separate, designated workspace when your employees may be able to work virtually anywhere internet services are available. If an employer seeks to impose physical standards on remote workspaces, it should have legitimate reasons for doing so, such as confidentiality concerns, the need for access to high-speed internet services, etc.
The Occupational Safety and Health Act contains a so-called “general duty” provision which requires employers to provide places of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). According to an Instruction issued by the Occupational Safety and Health Administration, employers are not required to inspect their employees’ homes to determine whether safe working environments exist. However, employers are required to record work-related injuries “regardless of whether the injuries occur in the factory, in a home office, or elsewhere.” Telecommuting employees who suffer work-related injuries at home may also be eligible for workers’ compensation benefits.
Provision of, or reimbursement for, necessary tools and equipment
Employees often need certain tools or equipment to work remotely — computers, monitors, phones, high-speed internet, etc. Some or all of these tools may not be available to employees in their homes. A common issue is whether employers must provide tools and equipment at their own expense or reimburse employees for the cost of any such tools and equipment. Unfortunately, the issue remains somewhat unsettled.
Federal Fair Labor Standards Act regulations provide that “wages” must be “paid finally and unconditionally or ‘free and clear.’” 29 C.F.R. § 531.35. An employer violates this regulation “where the employee ‘kicks-back’ directly or indirectly to the employer or to another person for the employer’s benefit the whole or part of the wage delivered to the employee.” The regulation provides us with a particularly relevant example: “if it is a requirement of the employer that the employee must provide tools of the trade which will be used in or are specifically required for the performance of the employer’s particular work, there would be a violation of the Act in any workweek when the cost of such tools purchased by the employee cuts into the minimum or overtime wages required to be paid him under the Act.”
This regulation gives us a black and white starting point. If an employee works remotely, at least on a non-volunteer basis, the employer cannot require the employee to purchase tools or equipment needed if the cost of the tools and equipment would effectively render the employee’s wages below minimum wage.
An employer’s obligations are less clear when the expenses do not potentially lower wages below applicable minimums, or where the tools and equipment are generally items most people have, or when an employee needs equipment in order to work from home on a purely voluntary basis. While many states have laws that specifically address these issues, Oklahoma does not.
Where teleworking is required, for any reason, including COVID-19-related reasons, employers commonly provide tools or equipment that employees do not have at home. Employers may also contribute towards the costs for services utilized by teleworking employees for both personal and employment-related reasons, including high-speed internet services, cell phone data plans, etc. There seems to be a growing trend to contribute towards these types of costs under a theory of “unjust enrichment,” i.e., the employer gains a direct benefit from costs borne by employees. Contribution towards these costs can certainly boost employee morale and provide some comfort in our current economic circumstances.
It is less certain that employer contribution is required where an employee requests to work from home for purely personal reasons. Presumably, this arrangement benefits the employee as much or even more than the employer, which alters the legal analysis. Whatever the practice or policy, be sure to apply it equally to all such requests, including requests triggered by COVID-related circumstances or requests for accommodation under the Americans with Disabilities Act.
Establishing and enforcing work hours
Telecommuting relationships present an inherent risk that non-exempt employees will work “off the clock” by intentionally or inadvertently failing to report all hours worked. Remember, employers must pay non-exempt employees for all hours worked. “Work not requested but suffered or permitted is work time” and must be compensated, even if employees are instructed not to perform the work. 29 C.F.R. § 785.11. Telecommuting employees that are assigned specific work schedules and advised not to work in excess of those schedules are still entitled to payment for work performed if the employer “knows or has reason to believe that the work is being performed.” 29 C.F.R. § 785.112. This is true even if non-exempt employees violate your policies against performing extra work or fail to adhere to established work schedules. (Note that this risk does not exist with respect to telecommuting exempt employees because they are paid the same weekly salary, regardless of the number of hours worked.)
Employers can take steps to minimize this risk. Telecommuting employees should be assigned specific schedules or hours of work, and instructed not to exceed those schedules or hours without written supervisor approval. Telecommuting employees should be required to (contemporaneously) record their hours of work and submit them on a regular basis, preferably daily. Employers should regularly monitor hours reported for compliance with assigned schedules. Employees who disregard these policies should be disciplined in each instance, but again, must be paid for any unauthorized work performed.
Another common concern for employers is whether teleworking employees are achieving certain levels of productivity. This concern has been heightened by recent circumstances, which have left many employees juggling work and childcare responsibilities. Employers are encouraged to actively monitor employee performance. Consider establishing regular progress or check-in meetings, or even scheduling weekly virtual face-to-face meetings via Zoom, Bluejeans, etc.
These days we are all relying on telecommuting more than ever, and the need for this arrangement will likely continue as long as we are all affected by COVID-19.
