Since Spring of 2020, remote or telework played an even greater role in business and replaced the traditional physical worksite. But the remoteness of employees has posed issues for deciding which employment laws apply to their work and employer monitoring.
Where does the employee work?
The leave laws governing the place where the employee works usually apply. But this may not necessarily apply to all remote or telework.
It may appear obvious, for example, that the federal Family Medical Leave Act governs all workers. But this may not be straightforward. For FMLA eligibility, the employee has to work at workplace at which fifty employees work within a 75-mile radius. Workers have to be employed for 12 months and have 1,200 service hours.
But an employee’s residence is not a worksite under the FMLA. The worksite is the office that the worker reports to and where assignments are made.
Other employee rights become more complicated under the FMLA if the worker’s supervisor is also working remotely. The U.S. Department of Labor has not yet formally addressed this matter and each situation may need to be assesses independently. At present, it may be assumed that the business’ physical location is the legal worksite.
To add even more complexity, states may have even more stringent laws than the FMLA. California, for example, provides benefit protections under its Paid Family Leave law and job protections under its Family Rights Act.
Another example is sick time. California is unlike other states and requires paid sick time. San Francisco has even more generous benefits than the state. This poses complications for employees working in other states or even different parts of California.
Employers should enact clear leave policies addressing these types of complicated situations. These policies should explain the difference between mandatory and voluntary telework arrangements.
Workers need to inform employers of any changes in their work location to ensure that the employers are complying with California, local or other state laws. Policy manuals should also contain the most significant legal requirements for California, localities, and other states.
Other issues, such as wage compliance, can be complicated in remote work arrangements. Attorneys can provide advice on legal compliance and protect interests in investigations and legal proceedings.