The COVID-19 pandemic and the proliferation of employees working remotely has prompted employers of every size to contend with new questions about laws applicable to their workers in distant locations. Depending on whether employees live just across state lines or have relocated to distant cities, states, or even other countries, employers could potentially find themselves in precarious legal situations.
To mitigate risk and maintain compliance with applicable laws, employers must determine whether the laws of the location of their employees’ residence, even temporary residences or vacation homes, apply.
Unfortunately, the answers are not always simple, but this checklist is intended to help employers identify relevant issues to discuss with counsel.
Employer Authorization to Do Business in the Remote Location
- By having an employee in X location, remote from the employer, is an employer “doing business” in that jurisdiction? Different rules may apply depending on the city, county, state, or country.
- Must employers register or “qualify” with the corporate authorities in the relevant jurisdiction?
- What is the threshold for creating a “taxable presence” in the jurisdiction? Employers may need to consider the number of employees, the length of time (temporary vs. permanent), the employee’s authority, activities and the level of physical presence.
- Is the employer obligated to withhold income taxes and/or other taxes?
- What taxes need to be considered and in which jurisdictions? For example, this could include income, employer, Social Security, Medicare, business, sales, use, and property taxes.
- Does the jurisdiction have a COVID-19 overlay of tax rules on top of generally applicable rules, and if so, for how long?
If considering out-of-state applicants who intend to remain out-of-state and work remotely, employers should review laws regarding background checks, questions that may be asked on applications (e.g. some states bar employers from asking certain questions, such as criminal history or pay history), offer letter content, new hire information, new hire policies, new hire reporting, use of artificial intelligence in the interview process or decision making, and enforcement of non-compete permissions.
- Employers should consider local rules regarding limitations on telecommuting policies, and consider what those policies should include, for example:
- Is the arrangement temporary or ongoing?
- Will the employee be 100% remote or partially in-office?
- Are there strategic times employee must be in the office or present remotely?
- How will mail delivery or meetings be handled?
- When will manager “check-ins” occur?
- What are the workspace safety considerations?
- How will security/privacy of company information be handled?
- How will performance be monitored and expectations evaluated in the remote environment? Employers may need to revise job descriptions to match remote work requirements.
- What does an employer need to do to be compliant with wage-and-hour laws, including timekeeping, and how could the employer or employee break compliance?
Compensation, Workweek Scheduling, and Wage/Hour Issues
When scheduling, employers should consider:
- Minimum wage rate, overtime, and final paycheck rules, including any exemptions.
- Flexible work hours. A flexible schedule may be appropriate if telecommuting due to childcare issues, for example.
- Virtual availability—e.g., email, phone, video, and requirements for coming to the office.
- Timekeeping policies regarding remote tracking of work hours and breaks, which are especially relevant for non-exempt employees to avoid off-the-clock and break violations.
- Timekeeping policies regarding location of work, especially for income tax withholding.
- Changes in compensation to align with the local market rate.
Employers must consider the equipment required by employees. For example, computer/laptop, internet, cell phone, apps or software, printers, office supplies (such as pens, paper, or printer cartridges), ergonomic items (such as stand up desks, chairs, keyboards, or headphones), and whether the employer will offset the cost of any such items.
In addition, employers must consider whether local laws require expense reimbursement.
Employers may need to consider implementing a policy and practice permitting and storing e-signatures on company documents.
Workspace Set-Up and Accommodation Requests
Employers should consider:
- The security of workspace, such as restrictions on use by other members of the household. This is particularly important for employees dealing with confidential information or trade secrets, customer information, or medical records.
- The extent to which the employer may structure/monitor/inspect physical workspace.
- The equipment it will provide (e.g. desk, chair, office equipment supplies, IT equipment (computer/tablet/phone) and related support. Many employers offer an employee stipend.
- Developing a “Bring Your Own Device” policy for employee personal devices used for work purposes and be prepared to address compatibility, privacy, and security issues.
- How to address accommodation requests for home work, including ergonomics and alternative work schedules.
- Telecommuting as a reasonable accommodation.
- Are remote employees covered by your current plans (such as health insurance and similar plans)?
- Are special riders needed? For example, you may need to coordinate with your medical coverage carrier or administrative service provider to ensure coverage.
- Are remote employees in a state that has an individual health coverage mandate (such as California) that requires coverage and reporting?
- What effect does remote working have on compliance with local city/county ordinances (such as those in San Francisco) for remote workers who are now working in that city/county when they weren’t before (and vice versa)?
Health & Safety
- Are there mask, social distancing, and other safety policies for those employees who are coming into work?
- Is the employer limiting the number of employees who may be on the premises at the same time?
- Have policies been developed for those essential employees coming into work regularly?
- Have policies been developed for employees coming into work occasionally?
- Is the employer complying with Occupational Health and Safety Administration (OSHA) or similar laws and ensuring workplace safety for employees working at home or elsewhere under state and federal law?
Is the employer complying with other state workplace requirements related to COVID-19, such as mandatory training, postings, or policies, physical barriers, availability of hand sanitizer, and social or physical distancing onsite employees?
- For those with private workers compensation insurance, does it extend to remote workers?
- For those covered by a state plan or requirements within the jurisdiction for what happens to out-of-state/jurisdiction workers?
- How will the employer respond to workplace injuries at home or other remote locations?
- What are the notice posting requirements in the jurisdictions where employees are located?
- How do employers comply with notice posting requirements for remote workers?
- Is online posting practical and sufficient? Is individual notice required?
- What are the training requirements in the jurisdictions where employees are located?
- What are the options for employers to comply with training requirements for remote workers?
Managing Employee Performance
Have employers/managers considered:
- How to keep employees engaged?
- How to maintain morale?
- How to provide clarity about duties and responsibilities?
- How to provide clarity in application of payroll taxes?
- Whether to pay extra for those employees who must go into the office?
- How to ensure compliance with company policies?
- How/whether to monitor substance use/abuse?
- Review ownership issues and the ability to protect the company’s intellectual property, such as: patents; trademarks; copyright; inventions; literary and artistic works, designs, and symbols; and names and images used in commerce.
- Review confidentiality, trade-secrets, non-disclosure, and non-compete provisions that may impact individuals working remotely.
- Consider protection of confidential information that the remote individual creates, controls, sends, or receives.
- Consider assignment of IP that the individual creates, controls, sends, or receives.
- Assess Export Administration Regulations (EAR) and International Traffic in Arms (ITAR) rules, restrictions, and implications for the individual working remotely.
Termination of Employment
- What contract provisions apply?
- What limits might apply in the jurisdiction where the employee is now working?
- What notice and severance provisions apply?
- Is notice to any government entity required before or after termination?
- Is government or other approval required before termination?
Has the employer considered:
- H-1B and E-3 compliance?
- Is there a need to file a new Labor Condition Application (LCA) to reflect a remote work location?
- Options for posting LCA remotely/online?
- Is there a need to file an amended petition to reflect a material change in employment prior to a change of a remote work location?
- For termination:
- Need to withdraw LCA?
- Need to withdraw petition?
- Need to offer return transportation to last place of residence outside the United States?
- Up to 60 day grace period for maintaining status after termination?
- H-1 and L-1 workers may recapture days (working or nonworking) spent outside the United States.
- F-1 STEM OPT and J-1 supervision requirements for remote work.
- PERM initial step in employer green card sponsorship.
- Need to redo notices for remote work if position will become and remain remote.
- Posting location requirements.
- Form I-9 preparation for onboarding and reverification of work authorization.
- Are remote document review options available?
- Requirements for E-Verify participation if remote workers are working from states where E-Verify is mandatory?
- International travel restrictions should any employees travel or work abroad.
- Delays and restrictions on U.S. visa processing for individuals sponsored for work visas who wish travel or work from abroad and later return to the United States.
Privacy and Security
- Are there any local restrictions on monitoring data, equipment, systems, and network use?
- Is the employer in compliance with state/provincial, local, and federal laws when monitoring/accessing employees’ communications, documents, and other stored digital media and use of employer-provided equipment? Considerations include:
- Understanding the distinction between work-related and non-work-related activity and in-office and in-home activity;
- Obtaining required disclosures and consents;
- Reviewing internal company policies; and
- Using the least intrusive means and documenting legitimate business purpose.
- Is there a duty/right to inspect the home to ensure confidentiality of systems?
- What is the impact on employee morale?
- What are the appropriate levels of security for equipment, system, and network security in a remote working environment?
- Has the business evaluated its need for office space, and is a reduction or reconfiguration of office space appropriate?
- Have existing uses been revaluated in light of changed circumstances? For example, should a conference room be converted to a remote meeting room?