The number of jobs lost during the coronavirus pandemic total in the hundreds of thousands. But many of those who have been fortunate enough to maintain their employment have done so from home. This has changed how they work, as well as how their employers manage them.
Now, as some employers bring people back, others are struggling with how to do a hybrid model, or perhaps remain fully remote. With this, there are a number of legal issues that employers now face that are unique to remote work. New York employers should consult with an experienced New York small business employment attorney to create appropriate policies that address security, expectations, and productivity issues when working remotely.
And employers should remember that federal and New York employment laws apply even when your employees are at their home offices.
Overtime Issues While Mainintaining A Remote Workforce In The State Of New York
This is a significant issue, as employers may have a much more difficult task in determining how many hours their remote employees are working. For employees on salary (i.e., not hourly), this isn’t a concern; however, to comply with the Fair Labor Standards Act (FLSA), you’ll need to make sure you have metrics in place to prevent violations of federal and New York overtime laws for hourly workers. If an hourly employee works more than 40 hours in a single work week, you’re required to pay him or her 1½ times their regular rate of pay for the hours worked in excess of 40.
One way to address this issue is by installing a program that monitors how much time is spent working and accurately records the work hours of all employees. Numerous free and subscription time trackers are available on the market that provide a variety of different features and options.
A timekeeping program can also provide insights into your business, like where your staff is spending its time and which projects are costing the most money, allowing you to better plan your budget.
However, at a minimum, this core functionality should capture your remote employee’s work hours down to the minute in real time and record this on a timesheet for review. Your timekeeping program should be integrated into your remote work policy. The policy should state the following:
- A requirement that hourly employees record all hours worked;
- A set schedule of work hours (unless working outside the regular workday is permitted);
- A prohibition of “off-the-clock” work; and
- A requirement that employees obtain permission before working overtime.
You may look for an app that’s easy-to-use if compliance may be a possible issue. In any event, be certain that your timekeeping policies apply across the board to all hourly employees.
Antidiscrimination Laws Apply In An Office or Remote Work Environment In New York
The New York and federal laws that prohibit illegal discrimination apply even if your staff is working from home and don’t interact face-to-face. Sexual harassment can occur on a ZOOM or Skype call where an employee shares intimate images and videos without consent; engages in exploitation, coercion, or threats; or bullies another employee. Also, note that online sexual harassment may impact anyone on the call who witnesses this behavior.
You still must provide disabled employees with reasonable accommodation, such as technology or equipment that allows them to work from home. Likewise, New York employers still may be required to provide reasonable accommodations because of an employee's religious beliefs (perhaps flexibility to perform daily prayers).
Workers’ Compensation Protects Employees in New York, Even If An Accident Occurs In The Employee's Kitchen
An injury on the job can occur even when an employee is working from his or her home office – whether it be at the kitchen table, in the den, or some other location.
New York’s Workers’ Compensation Law protects employees when work-related injuries and illnesses happen. The law states that its fundamental principle is that coverage for workers and liability of employers is based upon injuries and illnesses that arise out of and in the course of employment, rather than being dependent on if the employee was physically at the office when the injury occurred.
Whether the employee will be entitled to workers’ compensation benefits for injury will require a complete understanding of the facts and circumstances as to the nature and extent of the work performed at home. New York employers can make it easier to evaluate a claim is in fact work-related by setting clear guidelines for the job duties and working hours of remote employees.
Employers should review their workers’ compensation and general liability insurance coverage to make certain that they cover employees working from home.
And as a final note on this topic, you may elect to prohibit employees from working at remote locations other than “at home”, such as a public place where they pose a greater risk of exposure to COVID-19, where there may be a greater risk of a worker’s compensation injury, where employers may have greater difficulty controlling their employees’ productivity, and where company and client confidential information are more at risk.
Additional Remote Work Policies To Consider Adding To Your Remote Work Policy
In addition to overtime, discrimination, and worker’s compensation, your remote work policy should also address these topics:
- Company expectations and metrics for work performance and productivity;
- Cybersecurity and the protection of confidential and proprietary information;
- The reimbursement of business equipment and expenses;
- Designated breaks and meal periods;
- The monitoring of employees’ communication for productivity;
- Employees’ health and safety in the home office; and
- The effective dates of your remote employee policies.
If you plan to have employees eventually return to the office, you may state in your policy that they are allowed to work from home because of the unique issues caused by COVID-19, where remote work otherwise would not be permitted, and that these are extraordinary circumstances due to the current public health safety circumstances.
In addition, you should consider asking all remote staff to read and acknowledge the company policies for remote work.
Further, employees may be using personal devices during their remote work, which brings unique legal challenges.
There’s a lot more to working from home on a long-term basis than just giving your okay as a business owner. New York business owners must be aware of the same laws and regulations that govern their workplaces, along with some unique challenges and circumstances that must be addressed for long-term employment from home.
An experienced New York employment law attorney can help you draft a comprehensive remote work policy. This policy will help your employees and business be better protected against legal issues that may come about in the remote work environment.
Contact Us To Help Ensure Your New York Small Business Is In Compliance With State And Federal Employment Laws
Make sure that your small business is compliance with New York and federal employment laws and that you draft a comprehensive remote work policy.
To learn more about employment law for New York Employers please check out the following articles:
- Employees Using Personal Electronic Devices for Work
- Employment Law Basics for NY Start-Ups and Small Businesses
Francine E. Love is the Founder & Managing Attorney at LOVE LAW FIRM, PLLC which dedicates its practice to serving entrepreneurs, startups and small businesses. The opinions expressed are those of the author. This article is for general information purposes and is not intended to be and should not be taken as legal advice.