Written by Christine Walters
Very carefully. More than your on-site employees? Perhaps, yes. There are some legal pitfalls to avoid, rules with which you must comply, and on the softer side, employee relations challenges for helping these employees feel included and engaged. Let’s address a couple of common compliance issues first.
Wage and Hour Compliance
Earlier this year, the U.S. Department of Labor issued a Field Assistance Bulletin (FAB) addressing several questions about teleworkers. When does paid work time start and stop for teleworkers? For example, a teleworker starts work at 7:00 a.m., takes a one-hour break from 8:00 – 9:00 a.m. to get the employee’s children ready for school, and resumes work at 9:00 a.m. The FAB explains, “The period between 8:00 a.m. and 9:00 a.m. is not work time under the FLSA because [the] Employee is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.” [emphasis added]
What if the employee did not choose when to resume work but was told by the employer when to do so? The FAB reads, “In sum, bona fide meal breaks and periods where employees are completely relieved from duty and are able to effectively use the time for their own purposes are not hours worked under the FLSA.”
Family and Medical Leave Act (FMLA)
The FMLA covers employers that have employed at least 50 employees for 20 or more weeks in this or the preceding calendar year. Eligible employees include, among other factors, those that work at a site that employs 50 or more employees at or within 75 miles from the worksite. How are teleworkers counted in relation to a worksite?
For example, consider an employer that has 40 employees working at its headquarters in Maryland and ten employees working from home on the west coast, who report into and get their instructions from headquarters. Where are those ten employees considered working for FMLA purposes? The FAB reminds us that employees who work from a home office should be counted as working at the worksite or location into which they report or receive instruction. Thus, all 55 employees would be considered working at a site that employs at least 50 employees.
Expenses
At least 15 states have enacted laws requiring employers to pay directly or reimburse employees for expenses they incur in the course of their employment. Many of these laws were enacted during COVID-19 when many employees began working from home and incurred costs related to use of the personal cell phone for business calls, home-based internet, printing, networking, and more. Maryland is not one of those states, but if you are a multi-state employer, ensure you are complying with any related requirement.
Employee Relations
This is not just the soft side of business. Research repeatedly shows employee engagement drives performance, production, growth in market share, and more. Take time and provide avenues for two-way communication with your remote employees. Include them in office events, chats, celebrations, and more.
