The COVID-19 pandemic triggered a lasting impact on the employment landscape, most especially on where and how work is performed. Previously, many employers required their employees to be physically present at the work site. However, many employees are now accustomed to the flexibility that remote work provides, and employers often find themselves needing or wishing to take advantage of a remote workforce.

In the modern era, many jobs can be satisfactorily completed on an entirely remote basis. Unfortunately, many employment laws have yet to catch up with this new way of doing business, making navigation of remote work relationships a complicated task for employers. That said, in the immortal words of Bob Dylan, “the times, they are a-changin’;” we are starting to see legislation and guidance to clarify some of these outstanding gray areas for remote workers.

On Feb. 9, 2023, the U.S. Department of Labor’s Wage and Hour Division (DOL) published a field assistance bulletin concerning the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) regarding remote working, or “teleworking” as DOL terms it. The bulletin advises employers on 1, ensuring workers who telework are paid properly under the FLSA; 2, applying protections for reasonable break time for nursing employees to express milk while teleworking; and 3, applying FMLA eligibility rules to employees who telework.

FLSA requirements

The FLSA requires employers to pay nonexempt employees for all hours worked regardless of where the work is performed. This requirement applies if the employer knows or has reason to know that work is being performed. In a remote work setting, this distinction can be less clear than it otherwise would be in a traditional workplace. Employers should have a policy in place outlining the requirement that all nonexempt employees track all hours worked, and explaining the procedure by which employees are expected to track their hours. As with a traditional workforce, employers must pay nonexempt employees for all reported hours of work, even hours not requested by the employer.

Additionally, the FLSA does not require employers to provide nonexempt employees with meal or rest breaks. However, they are required by many states, including Oregon and Washington, and the DOL provides guidance on how to treat these for pay purposes. The DOL bulletin explains that rest breaks (20 minutes or less) must be counted as hours worked (again, regardless of where the hours were worked). Conversely, meal breaks lasting 30 minutes or more are not compensable work time and can therefore be unpaid.

Employees must be relieved of all work duties during both meal and rest breaks. The bulletin explains that to be relieved of all work-related duties, employees must either be told ahead of time that they may leave the office or jobsite for the duration of their meal break, or the employer must allow employees to return to work when they choose, as long as the time is long enough for the employee to effectively use it for their own purposes.

The FLSA does require employers to provide nursing employees with reasonable unpaid break time to express breast milk for a nursing child for the first year of the child’s life. Again, this requirement applies regardless of where the work is performed. In addition to break time, the employer is also required to provide a nursing employee with “a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public,” where the employee can express breast milk. The DOL bulletin reminds employers that this requirement includes ensuring that the employee is free from view by any employer-provided or required video system (i.e., computer or web camera, security camera, conferencing platform, etc.) when they are expressing breast milk.

FMLA requirements

FMLA entitles eligible employees working for a covered employer to take job-protected leave for specified reasons, requiring the maintenance of group health plan benefits during the leave, and entitling the employee to return to their position, or to a substantially similar position with equivalent pay, benefits, and other terms and conditions of employment.

The new guidance reiterates that FMLA eligibility requirements apply the same way to employees working on the employer’s premises as it does to those employees who telework. Importantly, the eligibility requirements include a geographic component. Specifically, assuming the employee meets the other requirements for eligibility (i.e., work for employer for at least 12 months, and worked at least 1,250 hours for the employer in the 12 months immediately preceding the leave), the employee must also be employed at a work site where the employer has 50 or more employees within 75 miles of that work site. For FMLA eligibility purposes, the regulations state that a remote employee’s work site is not their home, but rather the office to which they report or from which their assignments are made.

The DOL field assistance bulletin provides important reminders to employers about their obligations under the FLSA and the FMLA, regardless of whether their employees work from the employer’s offices or work site, or from another location that is not under the employer’s control. With the rollout of paid family leave in Oregon, in addition to these pointers from the DOL, now is a great time to review remote work policies for legal compliance. To learn more about ongoing telework considerations, register for Barran Liebman’s “Telework Toolkit” webinar on April 4 at www.barran.com/seminars.

Wilson Jarrell is an attorney with Barran Liebman LLP. He advises and represents employers and management on a wide range of issues. Contact him at 503-276-2181 or wjarrell@barran.com.

Becky Zuschlag is a law clerk with Barran Liebman LLP. She partners with attorneys in employment, labor relations and benefits practices. Contact her at 503-276-2151 or bzuschlag@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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As of mid-2020, full-time remote work in the U.S. was up more than 40 percent and continuing to grow. It is predicted that 25 percent of all professional jobs in North America will be remote by the end of the year, and this is likely welcome to many workers. According to a 2021 Gallup poll, more than two-thirds of employees working remotely indicated that they would prefer to stay remote permanently.

Whether a company provides temporary or permanent remote work options for its employees, creating a written policy and understanding the implications of employees working out of state are imperative. Otherwise, employers face real risks of significant disconnect with their employees and potential liability from unintentional situations.

Policy considerations

While each company’s remote work policy will vary based on its unique needs and workers, there are a few key considerations that all companies should address.

First, think about the purpose of the policy. If the remote work policy is intended to be temporary, whether in response to a public health emergency or otherwise, and the company may shift back to in-person office work in the future, the company should clearly state that it is a temporary policy. This helps to ensure that employees do not have an expectation that the policy is permanent, and the company can change or alter the policy at its discretion.

Remote work may not be appropriate for all positions or employees within the company. If all employees are not permitted to work remotely, specify the criteria or state which positions are eligible for remote work. While some employees may be entitled to remote work as an accommodation, an employer otherwise has the discretion to determine whether an employee is permitted to work remotely.

However, to avoid potential discrimination and retaliation claims, implement and enforce a remote work policy uniformly and consistently. Be sure to include in the policy an approval process and designate who reviews and approves requests. The more discretion that is used to grant an employee the ability to work remotely or determine the terms of the arrangement, the more potential for risk. Allowing one responsible employee to work remotely, but not another less responsible employee, is a completely legitimate justification. However, any time two employees are treated differently – especially when one is in a protected class and the other is not – can create a rebuttable presumption of discrimination.

Given the independence that goes with remote work, employers often have less control over when and how remote employees work as well as less ability to track their time. Whether employees are working in the office or from home, nonexempt ones are still required to track their time and comply with meal and rest breaks.

In addition, an employer should set expectations regarding availability. When should employees be available to clients, customers, and other employees? Will they still be expected to travel, attend meetings, etc.? Companies should clearly outline when employees should be available and how quickly they should respond to emails, phone calls, and any other forms of communication used by the company. This includes indicating which mode of responsive communication is appropriate. If employees should respond “promptly” or “in a timely manner,” consider defining what those terms mean.

Depending on the organization and clientele, there are numerous other considerations that may be relevant to the workforce: overtime approval, dress code considerations, confidentiality, ergonomics and other worker safety considerations, internet stability, etc. Organizations should carefully consider what is relevant to their remote workers and carefully spell out expectations in their policies.

Management of out-of-state employees

More and more employees are requesting to work remotely from other jurisdictions. During the more uncertain times of the pandemic, many states turned a blind eye to remote worker issues. However, the temporary nonenforcement of these laws is a thing of the past, and states are recognizing that employees are working remotely, both in and out of state at an unprecedented scale.

Having remote workers in other states (and in some cases, other cities, counties or even countries) can implicate a host of general business and employment obligations, including minimum wage and overtime laws, payroll timing and method requirements, meal and rest break requirements, leave laws, restrictive covenant requirements, unemployment and state disability insurance, workers’ compensation and group health insurance, and tax issues.

Employers should have a policy requiring employees to inform them in advance where they are working when working remotely, and requiring they receive permission before working remotely in another jurisdiction. An employer has the discretion to decline permission for an employee to work remotely from a jurisdiction where they are not set up to do business. Before allowing an employee to work from a new location, the employer should partner with counsel to ensure it is complying with the requirements of that jurisdiction.

Policy application and implementation

As mentioned above, implementing and enforcing a remote work policy on a uniform, consistent basis whenever possible is paramount, whether employees are in the same jurisdiction as the business or are working out of state. Employees approved for remote work should review, acknowledge, and sign a policy and/or agreement describing their specific arrangements. Providing clear expectations at the outset can prevent unwanted headaches down the road – for a company and its employees.

Wilson Jarrell is an attorney with Barran Liebman LLP. He advises and represents employers and management on a wide range of issues. Contact him at 503-276-2181 or wjarrell@barran.com.

Becky Zuschlag is a law clerk with Barran Liebman LLP. She partners with attorneys in employment, labor relations and benefits practices. Contact her at 503-276-2151 or bzuschlag@barran.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither of the authors nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

The post OP-ED: With remote work here to stay, company policies should be created appeared first on Daily Journal of Commerce.