How Remote Work Changes Employer Defense and What You Need to Know

In recent years, employees have gained more work flexibility than they have ever had. According to multinational analytics and advisory firm Gallup, 53% of remote-capable employees are hybrid, which means they only show up at the office for a portion of their work hours each week or month. Another 27% of these workers perform their duties entirely away from the office.

Remote work has extensive benefits for employees and businesses alike, but it can also introduce significant problems with regard to employer defense against compliance and legal issues.

4 Ways Remote Work Presents Employer Defense Challenges

As an HR professional, you know how important it is to comply with regulations that govern your industry and business type. The thing is, remote work has made that more complex than ever.
As you continue to develop and refine your remote work policies, consider the following challenges you may face and learn what you need to know to overcome them:

1. Proof of Productivity and Performance in a Remote Environment

When employees are in the office and using its equipment, it’s much easier to control the amount of hours they work and observe their productivity and performance. With remote work, it becomes much more difficult.

Unless employees are using company equipment with special monitoring software, you may have no idea how many hours an employee is working, which can open the door to unexpected wage and hour problems, including issues properly calculating overtime and employment taxes, as well as ensuring employees are accurately classified.

You’ll also have to ensure reliance on measurable metrics to prevent any discrepancies if disciplinary action is necessary for performance issues. These metrics may also be required to fight accusations of discrimination when it comes to choosing employees for rewards and promotions based on performance.

2. Monitoring and Enforcing Work Guidelines

Because remote work makes it quite difficult to monitor employees, it can be just as hard to enforce company policies related to dress code and other forms of employee conduct.

If you only address these policy violations when you see them, for instance, that can lead to employee complaints of unfair policy enforcement. Accusations like these can have a negative impact on your reputation as an employer, making it hard to attract and retain top talent.

However, they’re also another issue that can lead to discrimination charges and accusations of unfair treatment, and not having proof that you didn’t engage in these actions can make employer defense that much more difficult.

3. Addressing Workplace Violations

All employers are subject to laws surrounding issues of workplace harassment and discrimination. However, remote work can make it difficult for employers and HR professionals to notice when an employee’s rights are being violated, making it harder to address these problems proactively.

Because employees aren’t working in the same space with one another, you may not fully grasp how to create harassment policies that adequately cover and address violations in the digital space. That lack of clarity can result in unclear reporting policies that inadvertently allow harassment or discrimination to continue.

4. Avoiding and Handling Safety Issues

You may not have considered it, but OSHA regulations do indeed apply to remote employees. They include what is known as a “general duty” clause that states employers have to create a safe and healthy work environment for every employee, including those who work remotely.

You’re also required to identify and address potential hazards, ensuring that the tools employees have to work with are safe and appropriate. You must also understand what constitutes a work-related injury or illness, as these must be reported to OSHA and recorded for compliance purposes.

5. Bypassing Unique Legal Challenges

As an employer, you are obligated to protect employee and customer data at every turn. That, of course, can be hard to do when employees are using their own devices for work and operating with networked equipment beyond their computers, such as tablets, cell phones, and printers.

Protecting data privacy for all stakeholders can also get tricky. For example, those working in healthcare and education must protect patient and student data, respectively, from falling into the wrong hands. That can be difficult when you can’t control where employees work, how records are kept, and who is in the room with them while they’re working.

What Employers Must Know About Protecting Themselves Against Remote Work Violations and Lawsuits

The rise of remote work has forever changed the employer defense landscape. To that end, below is everything you need to know as you navigate this unprecedented landscape in the coming years:

Work Location Matters

In the age of work flexibility, you may tout “working from anywhere” as a perk for your employees. And though that can be exciting for employees (and enticing for new applicants), it does bring new implications for HR professionals.

Different jurisdictions have varying laws regarding the following:

• Minimum wage
• Overtime pay
• Employee classifications
• Paid leave
• Background checks
• Discrimination prohibition
• Workers’ compensation insurance
• Breaks and lunch periods

You must comply with laws within the state where the employee works, not the state(s) where you do business or where your headquarters is located. That, naturally, can complicate your work and increase your compliance risk exposure.

Consistent Audits Are Key

All employers with remote employees should be performing risk audits on a regular basis. It’s crucial for you to know what legal dangers you face, what the penalties are for violations, and how to remedy such issues before they become a more significant problem. Laws and regulations change all the time, so it’s also essential for you to conduct these audits regularly to ensure ongoing compliance.

Risk assessments also provide a plethora of benefits to you as an employer. Not only will they help you avoid costly fines and penalties, but they can also mitigate reputational damage that can occur as a result of these violations.

Partnering with an Employment Law Attorney is Key in the Remote Work Era

As an HR professional, you may not know where to begin when it comes to ensuring compliance with varied state laws for your remote workforce. Employers must develop a concrete strategy for drafting and enforcing policies, and this is where an employment defense attorney can step in and help.

A knowledgeable employer defense lawyer can do much more than take on your case in the event you receive a citation. They can help you put the right policies, tools, and strategies in place to protect the business and its stakeholders while still allowing all parties to enjoy the benefits remote work can bring.

Contact the experienced team at the Law Offices of Pearlman, Brown & Wax, LLP today to ensure your business is compliant and fully prepared for the challenges of managing a remote workforce.