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What Employers Should Be on the Lookout for While Adapting to the “New Normal” of Working From Home

Author: Kathryn Lee Colgan

June 9, 2020 9:00am

Many of us are adapting to what is being called the new normal, which for many means working from home. With this change comes a variety of potential issues employers should tune into to avoid issues and potential lawsuits in the future.

Labor Code § 2802

Many employers who have the option available to them have pushed for all employees to work from home to prevent the spread of the virus and to avoid the potential legal ramifications of pushing employees to return to the office. However, while working from home provides a safety net with respect to interoffice spread of the virus, it opens the door to other issues.

For instance, California Labor Code § 2802 requires employers to reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”

This obligation is not likely triggered if the employer is providing its employees with the option to work from home. However, if employees who are normally in the office are required to work from home every day, said employer likely needs to be reimbursing its employees for reasonable business expenditures. What are considered “reasonable” business expenditures? Certainly cell phone costs if the employee is using their personal cell phone for work purposes.  Also very likely a percentage or part of the home internet service costs if required for use on the job while the employee is working from home.

The law, however, clearly states that the only reimbursable expenses are those which are “in direct consequence of the discharge of [an employee’s] duties.” Seeing as we are dealing with employees who are temporarily required to work from home due to entirely unforeseen circumstances, it is unlikely costs for home office furniture, electricity, water etc. meet the criteria under this Code.

Finally, to reimburse employees for said work at home expenses an employer can have employees submit individual expense reports, or some companies prefer to opt for a one-time bonus to cover expenses.

Rest and Meal Break Tracking

For those hourly employees, the work from home situation makes it particularly difficult to assure their time is tracked properly.  So how does an employer assure that its employees are abiding by all applicable rules?

First and foremost, an employer should provide its specific work and meal break policies to assure all employees have the information readily available to them in writing to reference.

Second, for those companies that do not have expensive time tracking software on their systems, instead implement a policy requiring that employees send an e-mail at the beginning and end of the day. Then again at the beginning and end of all meal breaks. This ensures the employer can monitor that the meal break pertaining to a specific employee has gone uninterrupted by work and that any overtime is clearly documented.

Workers’ Compensation

While requiring employees to work from home, various newly developing workers’ compensation orders (such as N-62-20 in California) specific to COVID-19 will not apply. However, what about non-COVID-19 workers’ compensation claims? In sum, while these are not at all common, they have occurred.

As such, similar to the meal and rest break policies, an employer should also assure that it provides any office safety policies, assure its employees confirm they are working in a safe location and advise immediately if that is no longer the case.

The above are just a few items employers should be cognizant of as we wade through this new work from home normal.

Takeaway

In sum, employers should take the steps and precautions necessary to assure their employees are well informed and constantly updated with any changes and their time and safety is properly accounted for. This will assist the employer in avoiding wage and hour and other potential labor and employment lawsuits from matriculating down the road.

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