Consider these three things before solidifying your remote work policies

As companies continue to welcome employees back to their physical workspaces, many have taken the opportunity to reexamine internal practices and develop a new perspective on remote work. While some companies have abandoned a physical workspace completely in exchange for a virtual one, an increasing number of companies are experimenting with a hybrid workforce featuring a combination of remote and in-person work. Remote employment can provide flexibility for employer and employee alike, it can increase productivity, and it can provide greater work-life balance especially for those accustomed to a lengthy commute.

However, remote work also has its pitfalls: employers, HR departments, and legal teams must take into account impacts on productivity and employee privacy; tax, insurance, and employment law considerations; and the potential negative effects on employee morale and company culture.

Checkwriters has compiled its top three considerations for employers when deciding whether to make remote work a permanent fixture in their organizations.

Productivity and employee privacy

An impediment to implementing or expanding a remote workforce for many employers has been concerns over decreased productivity due to a lack of supervision, as well as managing and deterring inappropriate use of company equipment and resources by employees from afar.  Some strategies to address these concerns include daily virtual check-ins, requiring employees to maintain and submit worklogs documenting projects or tasks completed, and the use of employee monitoring software.

Employee monitoring software appeared to be the answer for an increased number of employers who transitioned to remote work during the height of the COVID shutdowns. A recent survey indicated a fifty percent (50%) rise in the use of employee-monitoring software during shutdowns, with use continuing to grow. Software offerings in this sphere have touted their ability to track all manner of employee activity on company-provided equipment ranging from computer keystrokes to internet activity to GPS monitoring and video and audio monitoring.

Prior to implementing employee-monitoring software in the workplace, employers should carefully consider and weigh the utility of such technology against the legal and financial exposure which may result if such technology is implemented improperly.

Employers must first clearly and objectively determine the reason for implementing such technology, ensuring that the reason(s) for use is/are lawful and the scope of surveillance and monitoring is reasonable to achieve a legitimate business purpose. Legitimate or lawful reasons for employee monitoring include:

  1. Measuring and improving employee performance and productivity;
  2. Protecting against liability for employee misconduct; and
  3. Protecting trade secret, confidential information, and company branding.

With heightened monitoring comes myriad possible compliance pitfalls in navigating federal and state wiretapping laws, state privacy laws, and employment and labor law considerations. At least two states have enacted laws specific to the issue of employee monitoring software. The states of Connecticut and Delaware both require employers to provide employees with notice of monitoring practices prior to implementing the technology, with Delaware further requiring written employee acknowledgement of such monitoring or intercepting activity or policies.

Employers who implement employee-monitoring software should provide a detailed policy to their workforce defining the scope of acceptable and prohibited use of company equipment and technology.  This policy should clearly and succinctly state the lack of privacy expectation that employees should have when they use company-provided equipment and resources. Employees should be put on notice that some or all activity on work-provided computers may be monitored, including when they engage in activity that is beyond the scope of their employer’s acceptable use policy such as accessing personal email and social media, conducting personal and private telephone calls, and non-work related internet use.  

Tax, insurance, and employment law considerations

Nonresident employees who have ceased commuting to the state of their employer due to the availability of remote work will present compliance considerations for employers which they may have not had to address in prior years. Employers with remote employees working from a state other than that of their employer will now have to be mindful of their potential obligations in additional jurisdictions. Income tax withholding obligations typically run from the state where services or work is performed, but may also apply where an employee resides, with special rules applying for those states in which reciprocity agreements exist. Corporate and business income tax obligations may also be implicated in jurisdictions where remote employees are based, as well as foreign qualification requirements.

Employers will also have to be mindful of unemployment insurance obligations for employees who may be located in multiple states, as well as state requirements regarding worker’s compensation insurance, state disability insurance in some states, and paid family and medical leave insurance.

Finally, labor law requirements typically apply where an employee is working. Employers may be subject to more than one set of employment laws, which may not be consistent. Employers navigating two sets of employment laws would be advised to apply the law most beneficial to the employee to ensure compliance.

Employee morale and dilution of company culture

Employers who have worked hard to cultivate and develop organizational culture may find that remote work has had a significant impact on employee perception of the work that they do, where they envision the company is going, and more specifically where they fit into the whole equation. While many companies often have mission statements or mantras to describe their company or organizational culture, it all often boils down to how employees feel while they are in it. Remote work takes employees out of that experience, and has the potential to convert employees to spectators rather than participants. When this happens, organizational culture can suffer, as the personality of the organization is characterized by the employees who comprise it. Employers who have a large contingent of remote employees should proactively seek not only to maintain employee morale and  the positive company culture they once fostered in their physical workspaces, but should also seek to adapt the culture of their organizations to the digital world. Virtual events and team building, peer to peer engagement, and collaboration across departments and specialties can all contribute to a more inclusive and thriving company culture, while boosting employee morale by providing tangible mediums for employee expression, contribution, and acknowledgement.

The COVID shutdowns did not create remote work, but  did provide an opportunity out of necessity for employers to experiment with it, and to do so on a large scale. With the return to physical workspaces, employers can finally take a breath and be introspective on that experience to determine if and how it should be incorporated.

One certainty is that remote work is here to stay. A recent survey of 1,000 hiring managers by Upwork, Inc. revealed that  “40.7 million Americans expect to be working remotely by 2026, or almost 28% of respondents. . . That’s 4.5 million more than in a previous poll in the third quarter of 2020 -- and about 21 million above prepandemic levels”.   How employers and employees continue to navigate this changing face of work remains something to watch, but the ability to adapt, to pivot, and to evolve when necessary for employer and employee alike, will no doubt enhance the chances of success no matter the path or paths chosen.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

Megan Butz

By Megan Butz
General Counsel, HR Compliance, Checkwriters
Megan joined Checkwriters in 2020 and is responsible for reviewing, revising, and implementing internal policies of the company, advising on human resource, employment, and labor matters, and monitoring and publishing state and federal legal updates to the Checkwriters News and Compliance Center for distribution to thousands of clients around the country. Before joining Checkwriters, Megan served as a judicial law clerk for the justices of the Massachusetts Probate and Family Court performing legal research and writing, followed by private practice in Cape Cod.

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