(Source: CDF Labor Law – CDF Wage and Hour Task Force by Nancy N. (“Niki”) Lubrano and Brian E. Cole II – April 3, 2023)
As the health risks of the pandemic wind down, the complexities of offering remote work endure. Some employers are still offering full remote work, while others offer a hybrid to remain competitive and retain employees. Indeed, workers regularly request at least a partial remote work schedule. Allowing any remote work by non-exempt employees has its risks. The following discusses some of the pitfalls that California employers should be mindful of when managing remote workers and best practices to help avoid them.
Employers are responsible for complying with all of the same wage and hour laws for non-exempt workers, whether they are remote or not. The hot spots related to these laws and remote workers are claims for off-the-clock work/unpaid wages, meal and rest break violations, and unreimbursed expenses.
Timekeeping
To help manage these issues, employers should consider disseminating a timekeeping policy for remote workers, and perhaps implement tracking software to monitor work activity. It is essential to accurately report all time worked and strictly prohibit off-the-clock work. While tracking software is very helpful, requiring remote employees to confirm in writing, that they have accurately reported all of their time worked will go a long way in protecting the company and defending against violation claims if they arise in the future. Employers should also strictly prohibit emailing, texting, and phone calls when not clocked in, and require that all supervisors and upper management refrain from contacting non-exempt employees after hours.
Meal and Rest Breaks
Remote workers are entitled to compliant meal and rest breaks even when working from home. The start and stop times of meal breaks should be accurately recorded to the minute, with no rounding. To avoid unintended interruptions to meal and rest breaks of remote workers, who may believe they are being helpful by responding to calls and emails even though they are on breaks, employers should distribute a meal and rest break policy for remote workers prohibiting any work while on breaks. Employers should also consider setting a break schedule so that supervisors know when workers are unavailable to help eliminate potential interruptions.
California Labor Code Section 2802 requires employers to reimburse employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” For remote workers, this may include internet usage, computer equipment, and cell phone usage. Even with unlimited cell phone plans, courts have held that employers must pay some reasonable percentage of the employee’s cell phone bill if used for work. The same reasoning applies to internet usage. Employers may believe they have provided all necessary equipment to remote workers that are necessary to perform their duties. However, there are still potential expenses that could be recovered for office supplies, furniture, and traveling to and from the company’s place of business.
Reimbursed Expenses
After an employee is fully remote, that location becomes the employee’s “regular work site” for purposes of evaluating and reimbursement of travel time and mileage. To manage the risks associated with business expense claims of remote workers, employers should create a business expense reimbursement policy. Remote employees should be provided with the necessary supplies and equipment needed to perform their job remotely, and a monthly stipend for incidental expenses like cell phone or internet, if required to be used for business reasons. Employees should still be required to submit a reimbursement request for any additional expenses incurred as well as have a mechanism to address, with proper documentation, amounts that he or she does not believe are being covered by a monthly stipend. Employees should be required to obtain approval in advance before purchasing any larger or more expensive items, to determine if such expenditures are reasonably necessary before seeking reimbursement.