Although remote working had been increasingly popular for several years, COVID-19 exponentiated the phenomenon. Beginning in 2020, employers saw remote work as a temporary means of continuing operations. The reality now, however, is that for many industries, remote work is here to stay.
Whether the number of remote workers will dissipate as the pandemic wanes is uncertain, but recent statistics are remarkable: Gallop reports that during 2021, 45% of full-time U.S. employees worked from home either all (25%) or part of the time (20%). Regardless of whether such numbers decrease, legal risks will remain in this “new normal” of a distributed workforce.
Wage and hour challenges
Unlike salaried exempt employees (generally those whose jobs involve independent judgment or management responsibilities), non-exempt workers are entitled to overtime pay. While historically rare, many of these personnel are now working from home. Tracking hours for these employees is challenging, but no employer wants the surprise of a remote worker filing a wage-and-hour lawsuit (for unpaid work with after-hours emails, phone calls and the like). Such claims can result in the employer owing double the unpaid wages and paying the employee’s attorney fees.
Employers should clearly outline a timekeeping policy requiring accurate recording of all time worked, requiring advance approval before working any overtime, including minor tasks such as after-hours communications. The policy should set out...
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