Tuesday Dec 06, 2022

Key Considerations for California Employers When Drafting a Remote Work Agreement – JD Supra


More than two years have passed since the start of the pandemic, and many workers continue to work from home in some capacity. In fact, companies are offering remote positions as a hiring incentive to increase their job candidate pools. Before agreeing to remote work arrangements with new hires or current employees, especially those who are hourly and nonexempt, companies may want to consider certain factors to ensure that the arrangements will be feasible.

These factors may include whether an employee will be working in a location where the company can ensure compliance with applicable state and local employment laws, whether the employee can maintain the same quality and quantity of work product while working remotely, and whether the employee can obtain access to company data and maintain the confidentiality of such information.

California employers that conclude a remote work arrangement is viable may want to keep the following ten questions in mind when preparing an individualized, remote work agreement.

1. Where will the remote employee be working?

It can be a significant administrative burden for a company to ensure compliance with state and local laws where remote employees reside and work if the laws differ from those of the company’s location. Different employment laws may apply, including state and local minimum wage ordinances, sick leave and sick pay laws, predictive scheduling laws, and other paid and unpaid leave laws. To tackle the compliance challenges remote employees’ relocation requests can pose from the start, employers might consider adopting an approval process that requires a careful review of the laws applicable to the primary home address where the remote employee will be working to confirm that the company can feasibly manage the employment relationship in compliance with applicable local laws.

2. Has the employee obtained prior written approval for any change in the remote location?

Consider having employees request, in writing, to work remotely or relocate to a different state or city before they commence any work in that new location. Employers may want to remind employees in writing that the company retains the discretion to approve or reject any requests to move to a different state or city and that their employment remains at will.

3. Does the remote employee’s home office qualify as the employee’s principal place of business?

To help ensure that expense reimbursements are not taxable income, employers may want to consider adding language to the remote work agreement requiring that the employee confirm and represent that he or she is exclusively and regularly using a separate, designated area of his or her home or remote work location for work activities. Also, the remote work agreement could require the employee confirm that he or she has no other fixed location where the employee conducts work for the company.

4. How will the remote employee’s job performance be evaluated?

Employers may also want to consider addressing performance expectations in the remote work agreement. For instance, the agreement might include a provision clarifying that the remote employee will be expected to maintain the same work product requirements and performance standards as if the employee was working in the office, including duties, responsibilities, and amount of time worked.

5. What discretion will the company maintain about the remote work arrangement?

The company may want to consider including a provision in the remote work agreement that clarifies that the company retains ultimate discretion as to the implementation …….

Source: https://www.jdsupra.com/legalnews/key-considerations-for-california-9131296/

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