Question: I am interested in having a few of my non-exempt employees work remotely. Is there anything I should consider or implement before these employees start working remotely?
Answer: Yes. An employer considering a remote work arrangement should make the remote work opportunity available to other individuals in the same or similar roles. Employers who decide to allow remote work should consider implementing a written remote work policy or agreement to ensure that remote non-exempt employees comply with California wage and hour laws. Employers should also determine whether they will provide their remote employees with the necessary equipment to work remotely or indemnify them for their expenses. Finally, employers should consider setting expectations to ensure employees remain available and professional while working remotely.
A best practice for remote work is to establish and implement a written remote work policy or signed agreement that outlines the employee’s understanding and agreement to comply with these rules while working at home. California’s wage and hour laws apply to all employees in California, regardless of whether they work in the office or at home. Because of this, the written policy or agreement should require any hourly (non-exempt) employee to track all hours worked, to refrain from working off the clock, and to take their meal and rest periods. Despite being remote, employees should not be expected to perform tasks, respond to emails, or answer calls during their rest periods or when they are clocked out of work.
Another issue to consider is what equipment the remote employee will need to successfully perform their job duties. In general, it is a good practice to provide the employee with the equipment they need to perform their job. If this is not practical, the employer may reimburse the employee for the out-of-pocket expenses they incur related to their equipment. For example, if a remote employee needs to answer calls as part of their job, the employer may reimburse the employee for their use of a personal cell phone (rather than issuing the employee a company-sponsored cell phone).
There are reasons why an employer may require an employee to use an employer’s device rather than an employee’s device while working remotely. For example, an employer may require the use of the employer’s device to ensure that the data accessed remotely is not a security risk to proprietary information or is accessed in violation of professional standards such as HIPAA or client confidentiality obligations. If an employer decides to provide an employee with equipment, the remote work policy should include how the equipment should be used, how to maintain information confidentiality, and how the employee should return the equipment upon return to office work or separation.
Finally, the policy should outline the professional expectations for employees who work remotely. The employer can expect that remote employees have a designated work area, dress appropriately when appearing in meetings via video. The terms of the professional expectations will vary and depend on the employer’s industry and preferences.
If you are considering a remote work arrangement, or if you already have employees working remotely, you may wish to consult with your employment attorney to ensure the arrangement complies with the law and is set up to limit potential risks.