Employment practices liability: Remote working pitfalls

Over the past few years, companies have moved to open floor plans to encourage more collaboration. In conjunction with that and in an effort to provide more flexibility to workers, companies have provided employees with the option of working remotely either full-time or part-time. And of course, in today’s global COVID-19 pandemic, remote working has become necessary.

While remote working provides additional flexibility to employees, it is important to be aware of, and address, the potential employment practices liability (EPL) and wage and hour concerns.

Overall, EPL exposure may be reduced with remote working because there is less interaction with other employees (EPL claims are typically made against the company because of another employee’s conduct).

However, there are still some risks that remain that employers should consider addressing when offering remote working:

1. 01

   Application of flexible work arrangement policy:

   Review whether the policy is being applied consistently to all employees. For example, is the policy available to single fathers and single mothers alike? Is it available to employees with and without children?

2. 02

   Discrimination claims:

   Review whether there are defined policies and procedures in place to determine how performance evaluations, promotions, client assignments, high profile projects, etc. will be handled for remote workers to avoid potential discrimination claims.

3. 03

   Americans with Disabilities Act (ADA):

   Disability discrimination claims can also pose a problem if the remote work arrangement is provided as an accommodation, but the essential functions of the job are not clearly defined. For example, does the employee still need to attend meetings, travel, etc.

4. 04

   Social media use:

   Remote working calls for a greater need for policies and procedures regarding the use of social media because there is less oversight.

5. 05

   Third-party claims (harassment/discrimination):

   If the employee’s work still requires a great deal of interaction with the public, policies and procedures regarding how these incidents are reported are just as relevant.

In addition to the potential EPL concerns, remote working poses significant wage and hour concerns as well. For example, it may pose significant issues for non-exempt workers as it relates to overtime and tracking their hours.

It may pose issues with exempt employees also claiming misclassification. In this instance, you will likely have less record of hours worked so it will be a more difficult case to defend. Workers may continue to review emails after hours. While this one instance may not be considered compensable under the law, there is no bright line rule when de minimus work becomes significant and compensable.

Although there are risks, there are some best practices that can be implemented. These include:

• Be consistent in your application of any policies and procedures.
• Have policies in place that outline the expectations of employees when they are working remotely.
• Ensure there is adequate recordkeeping and oversight by monitoring access to the system during non-working hours for non-exempt employees.
• Have clear policies in place regarding overtime and “off the clock” work for non-exempt employees.
• Train supervisors in how to effectively communicate the job expectations with all employees and consistently check in with remote employees to discuss concerns, progress, objectives, etc.
• Have a consistent and clear policy regarding employee performance evaluations and eligibility for promotions.
• Set up metrics to measure all employee progress – monitor employee output and ensure deadlines/targets are met.
• Ensure that all employees, including remote workers, receive a copy of the employee handbook, review it and acknowledge receipt of it.

Disclaimer

Willis Towers Watson hopes you found the general information provided in this publication informative and helpful. The information contained herein is not intended to constitute legal or other professional advice and should not be relied upon in lieu of consultation with your own legal advisors. In the event you would like more information regarding your insurance coverage, please do not hesitate to reach out to us. In North America, Willis Towers Watson offers insurance products through licensed subsidiaries of Willis North America Inc., including Willis Towers Watson Northeast, Inc. (in the United States) and Willis of Canada, Inc.