Employee Handbook Series Part 2 of 3: Three Tips to Manage Legal Risk Through a Telework Policy

Considering the increased reliance on remote work (also known as “telework”), a telework policy can serve as a valuable risk management tool.  If you, as an employer, depend on any degree of telework, a legally defensible telework policy will establish your compliance with high-risk areas of employment law and communicate a message of due diligence to employees, agencies, and courts.

In response to the increasing reliance on telework during the coronavirus pandemic, on August 24, 2020, the Department of Labor (DOL) released guidance for telework arrangements.  Based on the DOL’s recent guidance and existing wage and hour law, we offer you the following three tips to manage legal risk through a telework policy as you revise and update your employee handbook.

https://www.youtube.com/watch?v=-JU9eO9TzeY&feature=youtu.be

 

Tip #1 – Expressly prohibit “off the clock” work by nonexempt employees and require a supervisor’s authorization for all “after hours” work.

Under wage and hour law, employers must exercise reasonable diligence to compensate employees for all hours worked (during and after regular business hours). To guard against unwanted after-hours work, employers may adopt a policy that does the following two things: (1) Prohibits off the clock work, and (2) requires a supervisor’s pre-authorization for all after-hours work.

By their own reports, many teleworking employees habitually check work emails and texts throughout the evening. For maximum effectiveness, your telework policy should clarify that after-hours emails and texts are still “work” and may only be done with a supervisor’s authorization.

Tip #2 – Develop and implement a reporting procedure for uncompensated time and encourage accurate reporting.

Prohibiting off the clock work is not enough. By establishing a reporting process for employees to report uncompensated work time, employers may meet their obligation to exercise due diligence to compensate all hours worked. An effective reporting procedure should require employees to report all uncompensated time, including instances where a supervisor asked an employee to work off the clock, and protect employees from retaliation based on their reports of uncompensated time.

Tip #3 – Regularly train management on telework timekeeping arrangements.

With both management and staff working from home, it may seem more natural for managers to call or email employees after hours. As your organization’s first line of defense, management should understand that discussions about projects or clients must be done either during the workday or, if done after hours, will result in compensable work time.

BONUS TIP: Consider employees’ expenses.

To effectively telework, employees may incur expenses, such as costs for increasing their internet bandwidth or purchasing updated technology. Notwithstanding state law (such as California’s expense reimbursement law), federal law does not explicitly require the reimbursement of expenses. If, however, employees’ expenses reduce their compensation below minimum wage, employees may have a claim under the Fair Labor Standards Act that could result in class-wide exposure for the employer. To minimize legal risk, employers may adopt a policy to reimburse certain approved expenses.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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