August 3, 2022
The year 2020 (and the then-new pandemic) changed the global workforce in several major ways. Most notably, many employers who previously required all employees to work on-site were forced to experiment with remote and hybrid work. Through this experiment-of-circumstance, many employers have learned that it is possible to successfully manage employees from afar. In addition, remote work serves as a cost-free employee benefit; employees appreciate the flexibility to decide which workspace—home or the office—works best for them.
While remote work has many benefits, it also creates an opportunity for several mistakes that are easily avoidable.
FORGETTING TO DOCUMENT EMPLOYEE PERFORMANCE
When it comes to employment litigation, documentation about an employee can make or break a case for any employer. Without documentation showing the employee’s performance over the course of their employment, it is hard for employers to provide evidentiary support for any employee action. In litigation, this results in the employer and employee battling in a “he said, she said” manner. Proper documentation, though, can back up the employer’s story and often results in a more defensible case for the employer.
Sufficient documentation is no different and no less important when it comes to remote employees. Even when an employee works remotely, employers must remember to keep documenting employee performance, including coaching, discipline, etc. Schedule regular virtual check-ins and meetings with remote workers to review their priorities and obstacles and to provide coaching and use those opportunities to regularly document employee performance.
FAILING TO PAY ATTENTION TO FLSA NON-EXEMPT EMPLOYEES WORKING HOURS
Remote work tends to blend employees’ home and work lives in a manner that can create risk under the Fair Labor Standards Act (the “FLSA”). Employers are required to pay employees who are FLSA non-exempt for all hours worked—including remote work. According to the Wage and Hour Division of the U.S. Department of Labor, employers are responsible for preventing unwanted work by an employee. See Field Assistance Bulletin No. 2020-5, Aug. 24, 2020. Employers must “exercise reasonable diligence” to pay employees for all time worked.
Based on the above, and especially in light of the work-home “blend,” it is imperative that employers set policies that require all employees, whether working remotely or in the office, to accurately record and submit all time worked. In addition, the policies should set forth a clear procedure for employees to report work time that occurs outside of their normal work schedule. An employer who maintains and enforces such policies would be able to use the same as evidence that it was exercising reasonable diligence.
INSIGHTS FOR GF CLIENTS
- Calendar regular employee check-ins and use those opportunities to document employee performance.
- Ensure that your policies require employees to accurately record and report all time worked.
- Ensure that your policies prohibit employees from working overtime without prior approval.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.