5 under-the-radar legal risks of managing a remote workforce

Make no mistake about it: The COVID-induced seismic shift to remote work is likely permanent, especially in light of evidence that remote workers tend to be more productive and happier.

For employers, that shift has created a host of new challenges.

Some are relatively obvious: maintaining employee engagement and ensuring cybersecurity come quickly to mind.

But others are more likely to fly under the radar – resulting in potentially more dangerous pitfalls.

After all, if you don’t see a hazard, you’re more likely to trip over it.

Here are five not-so-obvious dangers to avoid in the age of remote and hybrid work.

1: Harassment

Workplace harassment probably isn’t the first thing that comes to mind for most employers when they consider risks to manage in the remote-workplace world.

But guess what? Laws against harassment, like Title VII of the Civil Rights Act of 1964, still apply with full force.

And while the inclination might be to think that less in-person contact means less harassment, there is evidence to show that in fact the opposite is true.

The combination of higher levels of burnout and the ability to hide behind a screen increase the odds that some employees will experience workplace harassment while working remotely.

Online harassment and cyberbullying are very real. And they are both sometimes present in the work environment.

Best practice: Remind your remote and hybrid workforce that your workplace policy banning harassment of any sort applies with full force to the remote work environment. And don’t forgo anti-harassment training for remote employees; instead, place a renewed emphasis on it.

2: Posting Requirements

The COVID-19 pandemic did not relieve employers from complying with statutory requirements relating to the posting of notices to employees regarding their rights under a number of laws.

These laws include the Fair Labor Standards Act, the Family and Medical Leave Act, and the Employee Polygraph Protection Act.

The federal Department of Labor has advised that if a statute requires the continuous posting of a notice at the worksite, then electronic posting is an acceptable substitute for a hard copy only if three conditions are met.

First, all employees must work exclusively on a remote basis.

Second, all employees must customarily receive information from their employer electronically.

Finally, all employees must have readily available access to the electronic posting information at all times.

Note: For fully remote workforces, a direct mailing or single notice clearly doesn’t cut it.

And for hybrid environments, employers must make sure they meet requirements by posting hard copies of required notices in a conspicuous place.

Acceptable electronic means, where appropriate, include intranet sites, an internet website and a shared network drive.

3: Workers’ Compensation

Do you think employees can’t get workers’ compensation benefits because they work remotely? Better think again.

Look at it this way: Employers are obligated to ensure a safe working environment for their employees, period. And it doesn’t matter where they work.

The general rule: Workers’ comp is available for injuries that arise out of and in the course of employment.

These cases are extremely fact-specific, and they often raise close questions.

Here’s an example of a not-so-close case where workers’ comp would apply: While working from home, an employee who spends all day typing at a keyboard develops carpal tunnel syndrome.

Bottom line: If an employee can show they were injured in the course and scope of employment, they are eligible for workers’ comp — whether they got hurt at your worksite or in their home office.

4: Breaks

News flash: Legal requirements relating to the provision of breaks for employees apply to remote workers.

Federal law doesn’t require employers to provide breaks, but permitted breaks lasting up to about 20 minutes must be paid.

In a perfect world, remote workers would log on and off when they take these shorter breaks.

If an employee takes a break that is longer than authorized, the extra time is not payable. But to be off the hook, the employer must clearly tell employees that their break may last only for a specified time. They must also tell employees that any unauthorized extension of the break is against the rules and will be punished.

Under federal law, meal periods generally are periods lasting 30 minutes or more.

They are not compensable time.

State laws vary considerably.

Some states require meal breaks and/or rest breaks.

Best practice: Have remote workers document meal and break periods to comply with all applicable legal requirements.

5: Reimbursement

An at-home employee uses his personal printer to help get the job done. When it’s time to replace that ink cartridge, who pays for it?

First things first: Under federal law, nonexempt employees may not be forced to pay for an expense if doing so pushes their pay below the legal minimum wage.

State law is a much different story.

Many states, including New York and California, require employers to reimburse employees for their business-related expenses.

Employers must look to the law in their state to determine the extent of their obligations in this regard.

In a hybrid workforce, employers will want to offer similar expenses to remote employees as they do to in-person workers. For example, if you purchase pens and notebooks for employees in the office, reimburse remote employees for their office supplies as well.

Best practice: Reimburse employees for business-related expenses in all cases as a matter of fairness — even if you aren’t legally required to do so.