Working From Home: The New Normal?
WFH: the new acronym to know. At the time this article was drafted, a Gallup poll revealed more than half of the American labor force had been, or was still, working from home: comprehensive coronavirus testing, contact tracing and treatment protocols remained works in progress in the United States; and, a vaccine was still many months away.
Yet the pandemic has shown just how many companies can function adequately, even successfully, without placing all of their employees in the same office. According to research by the consulting firm Global Workplace Analytics, 56 percent of the U.S. workforce holds a job that is at least partially compatible with remote work, and a typical employer can save $11,000 per year for every employee who works remotely half of the time. Even the more conservative Bureau of Labor Statistics reports that 29 percent of Americans can work from home, including one in 20 service workers and more than half of information workers. And perhaps the tipping point: the average commute in the U.S. recently hit an all-time record of 27 minutes one-way.
It is not surprising, then, that COVID-19 has accelerated trends that were already underway for companies looking both to cut spending on office space and to attract and retain talent. If you run an organization whose employees are more or less getting their work done at home, is WFH the new normal, and what are some of the WFH legal issues to consider?
WFH Policies and Their Nondiscriminatory Application
AWFH policy should clearly address, among other elements: who will be permitted to work from home; expected hours of work (any start/stop times, meal and other break periods); productivity standards; connectivity and logistical issues (protocols for submitting work conference calls and online meetings); and, parameters for bringing work documents home (adherence to confidentiality and data security protocols).
Employers must take care to ensure that remote work policies are administered in a nondiscriminatory manner. Specifically, in determining which positions or persons may work from home, employers must apply legitimate, nondiscriminatory reasons to prevent discrimination on the basis of age, race, gender or any other legally protected class.
WFH Wage and Hour Matters
Under the federal Fair Labor Standards Act, full-time, salaried exempt employees must be paid their salary while working from home unless the business is closed and the employee performs no work for the entire week. However, remote work can cause exempt employees to perform certain duties not considered exempt from overtime. The FLSA provides some leeway in emergency situations, but employers should carefully monitor and limit such non-exempt work or risk losing the exemption.
The FLSA requires employers to pay hourly. non-exempt employees for hours they actually work, including any overtime hours, so employers must have accurate means to track all remote work time. Such employees should be required to record and report all start and stop times- at the beginning and end of each day, at the beginning and end of all breaks, and for any work performed outside the normal workday (e.g. calls, texts or emails after normal working hours). There are many strategies that can be implemented to maximize accurate time reporting and productivity.
Some Additional Legal and Practical WFH Considerations
• Security of paper documents and of electronically stored information/ communications at home
• Workers' compensation and general liability coverage when employees WFH OSHA requirements that employers provide a workplace that is free from recognized hazards likely to cause harm
• Resources and equipment utilized at home and any related expense reimbursement.
It seems clear that we can't return to life before the pandemic, but we can adapt. It is Global Workplace Analytics' best estimate that by the end of 2020, 25 to 30 percent of the workforce will still be WFH multiple days a week. It may be time to restock the fridge.
For more information, contact Lisa Smith Presta at 814/870-7656 or presta@mijb.com.
Article featured in the Manufacturer and Business Associations' July 2020 Business Magazine.
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