This is the first of several posts addressing remote work considerations arising out of the COVID-19 pandemic.

We are now well into 2021 and more and more employers are considering the return to office plan. But what if you don’t? There are many reasons why you might be considering keeping most, or all, of your employees remote. Many employees want this option, for all the reasons you might expect: flexibility, no commute, meetings are actually easier and quicker via video, the wardrobe becomes much simpler, and the list goes on.

A recent Gallup poll found "three in five U.S. workers who have been doing their jobs remotely from home during the coronavirus pandemic would prefer to work remotely as much as possible…"

But what are some of the biggest concerns employers have with a more permanent remote workforce? Here are a few important considerations:

• Properly paying employees when you cannot see them come and go. Employers are required to pay employees for all hours worked, including work not requested but permitted; this of course includes work performed at home outside of the normal workday. This past summer, the Department of Labor provided guidance, reiterating that if an employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Courts will assess whether the employer should have acquired knowledge of hours worked through reasonable diligence. Therefore, employers must ensure they are properly accounting for their employees’ hours, even emails or messages that come through after hours. Managers should be aware of these rules, and ensure that work is not happening outside of normal hours (unless it is accounted for).

• Privacy and confidentiality. With a larger number of employees handling employers’ information from the comfort of their homes, the way data is stored and shared needs to be reassessed. If your employer policies that cover confidentiality and security have not been updated to address the work-from-home environment, take time to review those and make necessary changes. Include training for employees on how to transfer data, how to recognize when information is confidential or highly sensitive, and make sure you know what devices employees are using (and where they are storing company information). There are many software solutions available for employers to allow them to monitor their networks and flag suspicious activity or receive alerts if large amounts of data is being downloaded.  

• Employees living…anywhere and everywhere. One of the big surprises some employers faced with a new remote workforce was finding out some employees moved (and sometimes without telling their employer). Employees’ ability to live anywhere is, generally speaking, a great perk to the remote work option, but employers need to be aware of the issues.  There are different tax and payroll concerns when you live in a different state and, as an employer, you have to be prepared to handle the insurance and benefit issues in that new location. For example, in New York, after only two weeks of working there, an employer will be subject to payroll tax implications, and will need to address business license fees. Employers are required to register and obtain workers’ compensation and unemployment insurance in the state where the employee is working. Typically, these state rules are based on where the employee is working, even if at home, and not where the business is located. Therefore, it is important for employers to draft policies to ensure employees alert the employer to their intention – or desire – to relocate. To avoid headaches in new states, employers can implement policies that require employees stay within a certain vicinity of the employer’s location.