As employers and employees adapt to the new realities of working from home on a permanent or modified basis, employers need to be aware of the employment law issues that arise with such arrangements. This Friday’s Five covers five items employers should review for employees working from home:
1. Confidentiality and security.
Employers are able to monitor company owned equipment and internet services at the office. However, with employees working remotely, employers lose this control, and employees likely do not have the same sophistication when setting up security for technology. Employers should review the need to provide training to employees about the use of public Wi-Fi, updating passwords, the use of password security management software, and other best practices. It is also recommended to remind employees to be aware of their surroundings when discussing confidential company information – such as on phone calls in public areas.
2. Employee privacy.
Employers can generally monitor employees’ use of company provided internet at the office, employers have less rights to monitor employees while they are working from home. The employer’s ability to monitor employees away from the office can create some issues (especially when there is no clear distinction of when the employee is on or off duty – as discussed below). Employers should review their policies to ensure that any monitoring does not violate employee’s privacy rights and sets for a clear policy of what the employer is monitoring. A critical aspect of the review is the company’s policies about what is being monitored, ensuring that there is a need for the monitoring, and ensuring that the monitoring does not capture data or information that the employee has a reasonable expectation of privacy.
3. Clear designation of working hours.
The Wage Orders require that California employers keep “[t]ime records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded.” IWC Wage Order 5-2001(7)(a)(3).
Additionally, Labor Code section 1174 requires employers to keep time records showing the hours worked daily and the wages paid, number of piece-rate units earned by, and the applicable piece rate paid.
Employers need to ensure employees have a clear method for tracking their time worked at home to meet these obligations. In addition, employers should consider setting designated work hours, so that employees are clear on when they are expected to be responsive to work-related requests and to minimize the need for overtime work.
4. Expense reimbursement.
As explained on this blog before, California Labor Code section 2802 requires employers to pay for necessary business expenses incurred by employee, and this would include expenses for working at home, such as for computers, printers, internet usage, and other items, such as paper for printing if required by the employer. However, as the LA Times reported, some plaintiffs are alleging that not only should employers have to pay for their printers and computers, but also for missed revenue the employee could have received for renting out their home office. I’m a bit skeptical about whether missed rental revenue is recoverable under the Labor Code, as missed rent would be difficult to prove.
5. Minimum wage, paid sick leave, and other local requirements based on where the employee’s home is located.
Employers need to be careful about varying minimum wage and paid sick leave requirements for employees who are working from home. The employee’s home may be located in a different jurisdiction than the employer’s workplace, and it could require the employer to pay the employee at a different minimum wage rate or provide additional paid sick leave.
Many of the local and county ordinances set forth when the city or county law will cover an employee who works within its jurisdiction. For example:
- Santa Monica: Law applies to any employee working a minimum of two hours within Santa Monica in a given week (even if employer is located outside of Santa Monica).
- City of Los Angeles: “An employee is an individual who performs at least two hours of work in a particular week within the City of Los Angeles….”
- County of Los Angeles: “Anyone who works at least two hours in a one-week period within the unincorporated areas of Los Angeles County is entitled to the County minimum wage for the hours worked in the unincorporated area of the County.”
- Pasadena: Applies to employees who perform at least two hours of work in Pasadena.
Employers need to review the various jurisdictions in which the employees are located when working from home to ensure the employees are provided the required minimum wage and paid sick leave that may be triggered based on where the employee is performing their work.