While some issues are brand new, most are common problems simply manifesting in new ways.
More than a year and a half into the COVID-19 crisis, the slow creep “back to normal” is proving more like the dawn of a new workplace era. While the outlines are still forming, we can see clearly that remote work and flexibility will be hallmarks of the new workplace age. These changes, of course, bring challenges for employers. While some issues are brand new, most are common problems simply manifesting in new ways.
Accommodations and Schedules
Remote work is more popular than ever, with employers and employees both embracing the change in at least some respects. Even employers who return to fully in-person schedules will likely find at least some unavoidable increase in remote work. The U.S. Equal Employment Opportunity Commission has long considered remote work a reasonable accommodation for employees with disabilities under the Americans with Disabilities Act (ADA). Advances in technology over the years have chipped away at employers’ arguments that remote work constitutes an undue hardship, and the pandemic added dramatic evidence that lots of work can, in fact, be done remotely. The paradigm shift also increased reliance on support technologies, such as Zoom and Slack, quelling some of the pre-pandemic concerns about decreased collaboration and communication. Employer upgrades to technological infrastructure to support remote work have also largely alleviated data security concerns.
Sometimes remote work is not possible or creates a major disruption to the workplace, though we can expect that to be more of the exception than the rule moving forward. Employers who excused essential job functions to maintain remote operations during the pandemic’s peak, and who reinstate those functions along with a return to the office, may have grounds to deny telework requests. If the employer would have to eliminate essential functions for an employee with a disability—even if those functions were temporarily halted during the pandemic—this would likely not be a reasonable accommodation under the ADA. See, e.g., Maffett v. City of Columbia, No. 3:19-832-MGL-KDW, 2021 U.S. Dist. LEXIS 178622, at *55 (D.S.C. April 19, 2021). In Maffett, the court awarded summary judgment to the employer where it had denied plaintiff’s request to telework as an accommodation. One of plaintiff’s essential job duties involved using specialized equipment on-site, and even though the employer had made due with telework during the pandemic, it sought to resume normal operations. The employer had no obligation to alter plaintiff’s job duties, even if it had temporarily suspended some job duties during the pandemic.
Outside the accommodation setting, employees likely view remote work as a reasonable solution to common workplace challenges like scheduling, inclement weather, and security and logistical concerns. From an employee relations perspective, at least some remote work flexibility is fast becoming a hallmark of a positive work environment and a must-have from the job-seeker’s perspective. Employers benefit from the flexibility of remote work too: a blizzard, a public transit outage, an employee’s doctor appointment, or a child’s school closure no longer means a lost workday.
Oversight and Privacy
With remote work becoming a permanent fixture, employers need to develop long-term solutions for adequate oversight of employees and operations. Over the past 18 months, many employees have opted for working at times that suit their personal schedules, rather than the typical 9-to-5. While productivity has held relatively steady across the workforce, employers may still want to take steps to maintain the workplace’s structure while weaving in new flexibility.
Starting with incremental and noninvasive changes, such as weekly check-in meetings rather than productivity surveillance software, may be preferred. Drastic changes that send strong messages of distrust to employees can have a serious effect on morale, so employers may wish to consider them only as a last resort. When productivity surveillance software is implemented, companies should develop clear policies to ensure that these powerful tools are not misused or abused. Members of management may be tempted to discipline workers based on reports from new software, but this could raise legal issues if managers give reports undue weight or favor them over the company’s longstanding performance metrics. Further, discipline based on these new reports without sufficient regard for context (which could involve employees’ legally protected rights at work) could raise legal issues. Employers who consider reviewing employees’ emails or online activity should use caution, as review of substantive communications could implicate privacy laws such as the Stored Wire and Electronic Communications Act, 18 U.S.C. §2701 et seq., or constitute surveillance of union or organizing activity in violation of §7 of the National Labor Relations Act.
Wage and Hour Considerations
Remote work arrangements raise wage-and-hour compliance concerns because employers cannot physically monitor when employees are working. An employer must pay nonexempt employees for all hours worked, including hours for which the employee was not scheduled, if the employer has actual or constructive knowledge of the additional hours worked. See 29 C.F.R. §785.11-12; U.S. Dep’t of Labor Field Assistance Bulletin 2020-5. To satisfy this requirement, employers of remote workers must exercise reasonable diligence to determine the hours worked by their employees, and can do this by establishing a reporting procedure for time worked and compensating employees for all reported hours of work, even where the employer did not request or direct the work to be performed. When an employer implements such time reporting procedures, and the procedure is reasonable, the U.S. Department of Labor finds the onus is on the employee to follow the procedures and report all time worked. See Bulletin 2020-5. Employers of remote workers should consider training management and employees on their reporting procedures and should stay abreast of any legal developments that may offer more worker protection or that sets forth additional requirements for monitoring and compensating remote workers.
Employers should review their employee overtime classifications, because misclassification as overtime exempt could give rise to costly wage and hour claims by remote workers. See, e.g., Murray v. City of New York, Index No. 1:21-cv-05835 (S.D.N.Y. filed July 7, 2021) (class action brought by case discovery analysts in New York City district attorneys’ office alleging they are non-exempt employees who were not compensated overtime during their remote work from April 2020 through April 15, 2021). An employer that does not require remote employees to report hours worked and is found to have misclassified them as exempt could face significant liability, particularly since they did not actually observe their time working.
Because remote work is now commonplace, we may start to see more robust expense reimbursement requirements for employers of remote workers mandated by state or local law, such as requirements for reimbursement of charges for cellphones, internet or data plans, or office supplies or equipment necessary for the employee’s job. For example, California requires reimbursement of “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties,” California Labor Code §2802; see also Cochran v. Schwan’s Home Serv., 176 Cal. Rptr. 3d 407 (Cal. Ct. App. 2014), rev. denied, 2014 Cal. LEXIS 10933 (Cal. Nov. 25, 2014) (holding that, if employees must make work-related calls on a personal cellphone, §2802 requires an employer to reimburse a reasonable percentage of their phone bill). Contrast this with New York law where employers must only reimburse expenses that have been promised to any employee other than one in an executive, administrative, or professional capacity who earns in excess of $900 per week. See New York Labor Law §198-C. Further, where out of pocket expenses results in an employee’s earnings dipping below minimum wage, those expenses must be reimbursed. 29 CFR §531.35. Employers will need to modify their expense reimbursement policies to reflect the status of the law in their states.
Harassment in the Workplace
One might assume that complaints of discriminatory harassment will decrease with employees having less in-person interaction, but sexual and other discriminatory harassment is common through written, telephonic, social media and online communication means. With video conferencing now commonplace, its formality has been lost by some employees who engage in inappropriate chats during meetings and others who take breaks without turning off their cameras or muting their microphones. Any of these scenarios could give rise to a claim of discriminatory harassment.
Employees are more likely to raise issues where there is less concern about socially awkward encounters with the accused or the accused’s work friends, and we may therefore see an uptick in the number of discriminatory harassment complaints from remote workers. A benefit to employers receiving complaints from the remote workforce is that an employer can more easily take prompt remedial action since the complainant and the accused are not working in the same physical workspace.
With remote work here to stay, employers should update their sexual and other discriminatory harassment prevention policies to address remote conduct, such as conduct during virtual meetings and prohibiting communications about a person’s living arrangements or personal space that are viewed during video meetings in their homes. All New York employers are required to provide annual sexual harassment prevention training, and employees should now be trained to identify and report online sexual harassment as well.
Eve I. Klein is chair of Duane Morris’ employment, labor, benefits and immigration practice group and serves as the firm’s employment counsel. Maria Cáceres-Boneau is an associate practicing in the area of labor and employment law. Jenna M. Decker is an employment law associate in at the firm.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.