Let’s face it: remote, hybrid, and alternative work arrangements are here to stay. That’s not necessarily a bad thing. Though many employers already had accepted and adopted remote, hybrid, and alternative work arrangements before the COVID-19 pandemic (and the consequential quarantining that came with it), COVID-19 accelerated the need for workforce mobility and fundamentally changed who we hire and how, when, and where we work.
Remote work during COVID-19 wasn’t and isn’t a fad. Many companies have swiftly adapted and shifted to this landscape by reassessing their capabilities, building and leveraging infrastructure, and using cost savings to provide their employees with a better, more flexible work experience. Leveraging advancements in technology has given companies more choices in how they operate and where their employees work. Employers have seen that work at scale is achievable with alternative work arrangements, and workers have benefited from being home, feeling safer during the COVID pandemic, and not having to commute. Some companies have gone all-in on remote work, abandoning the brick-and-mortar altogether in favor of a fully virtual workplace.
Given the reception to and success of hybrid, remote, and alternative work solutions, virtual work arrangements are here to stay, and businesses need to embrace them.
As we look to the future, companies must reimagine how and where employees will work. Employers will need to find ways to optimize productivity, afford worker flexibility, attract and retain talent, and enhance wellness. At the same time, they will need to identify and minimize risks and avoid liability that can flow from having a remote work environment.
The Legal Risk and Potential Pitfalls of a Remote Workforce
Risks abound when offering alternative work arrangements or transitioning to a remote or hybrid workforce. These include:
Businesses should clearly define remote work and alternative work arrangements, including permanent and temporary arrangements, setting expectations, and clearly defining the role and job descriptions. Because not all work roles can be performed effectively offsite, alternative work arrangements should be limited to roles that can be performed successfully outside the workplace. Eligibility requirements should be spelled out and an application process established and enforced.
Wage and Hour Laws
Because minimum wage, overtime, and rest and meal break requirements differ from country to country and state to state (and even within states), businesses must familiarize themselves with all applicable laws, ordinances, and regulations, and ensure compliance in every jurisdiction in which their employees work. Employee supervision and tracking time are more challenging with employees offsite. For non-exempt workers in the United States, employers must comply with federal and state wage and hour laws, like the Fair Labor Standards Act (FLSA).
When multiple laws come into play, such as city and state laws, generally the one more favorable to the employee will apply. Another layer of complexity is added when the employer’s in-state laws require the payment of a higher minimum wage to workers than the minimum wage requirements of other states, where remote employees may be performing the same work as onsite employees. In those instances, under the same or substantially similar circumstances, the employer may have to pay all workers the same hourly wage to avoid possible violations of anti-discrimination and pay equity laws.
Another issue arises where offsite workers put in extra time. Even if managers instruct employees that they may not work extra hours, a business may still have to pay workers for overtime if they do, in fact, work extra hours. Employers …….