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The COVID-19 pandemic has had an unprecedented impact on the workforce, shuttering businesses, prompting mass layoffs, and compelling speedy transitions to remote work. If your company has rushed to implement a temporary remote work practice to accommodate the sudden need for social distancing, or if you have seen the benefits of telework and now choose to maintain what was initially intended as a temporary remote work plan, this article will provide you guidance on the long-term maintenance of remote work plans. Specifically, this article discusses whether work can be performed remotely, the value of up-to-date remote work policies, hours worked considerations, and how to effectively manage remote employee performance and remote worksites.
1. Which Positions Are Appropriate For Remote Work?
You can measure the viability of remote work in a position by evaluating the feasibility of (a) performing all job functions remotely; (b) modifying the position to exclude non-remote job functions; or (c) modifying the position to be partially remote. In making this determination, and in addition to weighing the health and safety of employees and the community in the current circumstances, you may consider:
Once you decide whether remote work is appropriate and for what period, you should clearly articulate the type of telework arrangement that is acceptable (long-term, short-term, or partial). In partial telework-eligible positions, you should clearly define which job duties may be performed remotely and which require an employee to report in person. Maintaining clear rules and expectations is essential to managing remote workers for pay, leave, and discipline purposes, discussed in more detail below.
2. Do You Need To Institute Or Update Your Remote Work Policy?
You would would be well-served to have an up-to-date remote work policy. A clear, written policy is a great way to set remote work expectations for your employees and keep them up to date on your company’s official policies and procedures established in response to the COVID-19 pandemic. If you instituted a remote work policy specifically for COVID-19 and intended it for short-term use, or if you utilized an existing telework policy that did not specifically contemplate COVID-19, your policy may need tweaking.
A remote work policy should specify required work hours, meal/rest periods, time and attendance records, and whether employees must obtain permission prior to working outside of work hours (or working overtime), and how that permission should be obtained. It is important to fully consider all your needs and options when instituting a remote policy, so you should contact legal counsel before drafting or updating yours.
3. How Should You Track Time Of Remote Workers?
In order to track the working time of your remote workers, it is key to have a defined process to ensure accurate records. For example, you may require that employees have an established schedule, keep track of their own hours, and request from management permission to deviate from the established schedule for any reason. Such flexible work schedules may be difficult to manage and require a detailed analysis of the employee’s time and the employee’s leave to determine an employer’s obligations on any given day. Thus, it is important to emphasize to employees that they should be diligent with adhering to established schedules, but there should be an open dialogue for addressing deviations.
You should also properly determine what kind of time is compensable. It is not always obvious when an employee’s time must be included as hours worked. The following examples represent a few scenarios where the answer could require a more fact-specific analysis:
You should choose one method for tracking time and apply it uniformly across employees to the extent possible. Inevitably though, because there is no one best method for tracking employee time in all situations, the process will vary by employer, and even by position. Additionally, there might be some flexibility with respect to teleworking employees interrupted for COVID-19 reasons. Accordingly, you should consult with counsel if you have specific questions regarding what constitutes compensable time or the best methods to track compensable time in a given situation.
4. How Do You Manage Employee Performance Remotely?
Successful managers are consistent in applying policies and maintaining open communication with their employees. Specifically, you should ensure that you regularly:
You should diligently document any departures from established policy, timekeeping or otherwise, at the time the violation occurs or is discovered. You should also not fear pursuing discipline just because an employee is remote – you discourage misconduct by consistently disciplining employees who abuse telework and deviate from established policies. Conversely, employees who request accommodations in their work schedules for COVID-19 related or other protected reasons should be accommodated to the extent possible.
5. How Do You Maintain Remote Worksites?
You may be liable for injuries on the job even if they occur at a remote worksite. It is therefore important to ensure that teleworkers’ remote worksites are safe and suitable for a productive workday. Employees who are responsible for setting up their own worksites may fail to anticipate safety hazards or may not be concerned about safety risks. This could result in worksite arrangements that are prone to injury, including wire tripping hazards and non-ergonomic workstations.
Accordingly, it is prudent to establish remote worksite guidelines in your remote work policies that indicate your expectations of employee worksite set up and maintenance. You may also ask your managers to conduct periodic checks on an employee’s remote workspace by phone or video conference to ascertain whether they are complying with your expectations. These checks are also useful in discerning whether employees need any technological assistance or tools that would allow them to perform their job functions more efficiently, and whether any business expenses call for reimbursement. If you discover policy violations, you can correct the violations and, if necessary, impose discipline to deter future infractions.
Not every position is perfect for remote work. However, with careful consideration of work needs and position functions, you can take advantage of the many technological tools available and maintain a productive remote workforce. By diligently maintaining two-way discourse with remote employees and educating employees with clear, written, and up-to-date policies, you can ensure that your company is using remote work to its full potential.
The bombs people drop on social media can detonate right away or lurk like hidden land mines. In some cases, someone is terminated from a current job for recent problematic posts. Take comedian Roseanne Barr, for example, whose tweet this spring referring to Valerie Jarrett was deemed racist and deleted immediately, but ABC executives still dropped her from her sitcom.
Or take Kenneth Storey, a University of Tampa visiting assistant professor who lost his job days after his tweet last summer suggested that the Texas victims of Hurricane Harvey were experiencing “instant karma” for voting Republican. Storey deleted his tweet, but not before a screenshot of it had gone viral.
In other instances, individuals lose a job for social media posts they made long before their employment began. That’s what happened to “Guardians of the Galaxy” director James Gunn, who was fired in July after comments he wrote on Twitter several years ago involving pedophilia and rape resurfaced. Even though Gunn said he regretted his words, it wasn’t enough to save his job.
When an employee posts something offensive, HR professionals are often on the front line of protecting the employer’s brand. Hiring managers also may be expected to act as defenders of the company if a candidate’s online posts have the potential to reflect poorly on the organization’s image.
Attorney Eric Meyer, who blogs about workplace issues, tracks news about employees whose offensive social media comments cause them to lose their jobs. He and other experts believe that this type of termination is becoming increasingly common.
“A firefighter, for example, who puts out a racist meme … CEOs, public figures, you name it. The frequency with which I see incidents of people getting fired doesn’t seem to have declined. I don’t see any evidence that it’s getting corrected anytime soon,” says Meyer, a partner at FisherBroyles in Philadelphia.
Adding pressure to HR’s role is the ubiquity of social media and the speed at which comments can erupt into full-blown crises. “Sometimes, it’s not even a 24-hour news cycle anymore—it’s a 15-minute one,” says Betty Lochner, an HR consultant and owner of Cornerstone Coaching and Training in Olympia, Wash. “If you jump in there and get involved in a conversation that would’ve petered out on its own, that isn’t the best response either.”
But doing nothing may not be a viable option when business leaders are subject to intense pressure to terminate an employee who’s behaving badly. Determining how to respond is no easy task. HR professionals and executives must weigh the potential damage to a company’s image and reputation against their desire to foster a supportive workforce that doesn’t micromanage workers’ actions.
Ultimately, business leadership must determine which behaviors cross the line. That evaluation process could begin whenever an employer learns about a potentially problematic post. “There’s not a cutoff or a statute of limitations for information,” says Jeff Polsky, an employment lawyer with Fox Rothschild in San Francisco.
Crossing the Line
The Internet has obscured the boundaries between people’s personal and professional lives, as more workers friend and follow their colleagues. The result is that employees may become privy to details about their co-workers’ off-duty activities, including their political affiliation, religious beliefs, drug use or participation in controversial causes, that otherwise would’ve remained private.
“Social media has opened the door for us to know people’s intimate views on things that are not work-related,” says Joey Kolasinsky, SHRM-SCP, HR manager at Encore Electric Inc. in Denver.
As people conduct more business and socializing online, Facebook and Twitter have become 21st century watercoolers, where workers flock to grouse, joke and vent. “These are conversations that previously would have happened in someone’s home or in a bar or on a soccer field, and it would have gone under the radar,” says attorney John Polson, a partner with Fisher Phillips in Irvine, Calif.
But in today’s hyperconnected culture, an online comment or photo can spread like wildfire from one co-worker to another and then to multitudes of strangers.
In the early days of social media, business leaders thought they could keep tight control over workers’ use of the platforms. Less than a decade ago, many companies introduced policies forbidding workers from making any negative comments online about the employer, says attorney Mark F. Kluger. Some employers even required workers to supply the passwords to their personal social media accounts—a practice that is now illegal in some states.
But starting around 2010, the National Labor Relations Board (NLRB) began fielding complaints from workers who had been disciplined for their online behavior. The NLRB warned employers that their social media policies could not punish workers for discussing wages, working conditions and terms of employment, all of which are considered “protected concerted activity.” That can include complaints about management, low wages and lazy colleagues, and those protections extend to nonunionized workers as well.
In addition, five states—California, Colorado, Louisiana, New York and North Dakota—protect employees from retaliation for engaging in lawful off-duty conduct and political activities, no matter how distasteful their colleagues may consider their affiliations. “If any companies in those states were to terminate an employee because they were a member of the Nazi Party, they might have a problem,” says Kluger, an attorney with Kluger Healey in Florham Park, N.J.
Workers can, however, be axed for engaging in hate speech and making disparaging comments about protected categories of race, religion and gender. They can also be shown the door for disclosing confidential information and trade secrets, defaming competitors or misrepresenting the company. In general, though, a business has great latitude in deciding whether to terminate for online behavior.
“It is entirely case by case,” Lochner says. “A company has to decide: What’s its reach? What’s the damage? There is no black-and-white answer.”
Don’t wait until a crisis erupts to decide which types of off-duty conduct are unacceptable. HR professionals, company leaders and other decision-makers should agree on a list of core company values so that they will know which behaviors violate organizational principles, Lochner says.
Setting A Policy
A social media policy and related training can help employees better understand the importance of demonstrating professionalism online and provide guidance on what types of online conduct may lead to termination. The HR team at ad agency RPA in Santa Monica, Calif., provides its 750 employees with a company policy and training on managing perceptions in the workplace. A recent session covered how offhand online remarks can affect someone’s image and reputation.
When employees misstep, the gaffes are usually due to what Small describes as “a lack of awareness” as opposed to malice. In one case, an employee saw a negative comment a colleague made online about the services of one of their company’s clients. The two employees were Facebook friends, and the content appeared on a personal page. The colleague contacted Small, who met with the person who made the post and explained why it was inappropriate. Mortified, the worker apologized. “We don’t want to kill free speech, but we want to be respectful of the clients we represent,” Small says.
Even a comprehensive social media policy cannot anticipate every instance where it might be applied. “There’s no one-size-fits-all,” Polson says. “You need a policy tailored to your specific business. And you don’t want to be too broad; you don’t have to have a policy for every decision you make.”
An effective and comprehensive social media policy should be included in your employee handbook. The policy should ask employees to:
When was the last time the company handbook was reviewed? It’s a worthy priority for the new year—or anytime, really. Handbooks are living documents that should be reviewed regularly, especially considering the federal government’s focus on deregulation and ever-changing updates from state legislatures and municipalities. Here are five key issues that may trigger updates:
1. Workplace conduct and social media
Under former President Barack Obama, the National Labor Relations Board (NLRB) scrutinized social media policies and other workplace conduct standards that may limit workers’ rights. For example, in many cases the board considered employee social media posts that are critical of employers a form of protected concerted activity and thus not necessarily grounds for disciplinary action.
With the Trump administration, the pendulum may swing the opposite way, giving employers more leeway to develop workplace conduct rules, said Bruce Sarchet, an attorney with Littler in Sacramento.
Already, the board overruled its previous standard that struck down policies if they could be “reasonably construed” to curb employee discussions about wages and working conditions—even if the policies weren’t intended to do so. “With [the] signal of a sea change in NLRB policy, employers need to pay close attention to the board’s new ‘policies on policies’ as they develop,” said Bonnie Martin, an attorney with Ogletree Deakins in Indianapolis. In the meantime, make sure your handbook’s conduct guidelines are specific and clear.
2. Sexual harassment
With sexual harassment news sweeping the country, make sure your policies spell out exactly how employees can complain and give people multiple outlets for doing so. “Having a policy that requires employees to report incidents to their supervisor isn’t helpful if the supervisor is the one doing the harassing,” said Randi Kochman, an attorney with Cole Schotz in Hackensack, N.J.
Take state requirements into account as well. California, for example, has mandated that content on harassment based on gender identity, gender expression and sexual orientation be included in supervisor training. The change took effect Jan. 1.
3. Parental leave
Leave laws are expanding in many states. In California, for example, businesses with 20-49 employees must offer job-protected baby-bonding leave beginning this year.
Workers in New York will be eligible for paid family leave in 2018, and even in states without such provisions, many businesses are opting to provide paid parental time off.
When updating handbooks, don’t include separate baby-bonding rules for mothers and fathers, Kochman said. While employers can include differing standards for mothers regarding the physical limitations imposed by pregnancy, they should use genderless terms such as “primary caretaker” in their parental leave policies.
4. Disability and other accommodations
An employer’s obligation to provide leave could go beyond the 12 weeks afforded under the federal Family and Medical Leave Act. For example, a request for intermittent leave to treat a medical condition may be considered a reasonable accommodation under the Americans with Disabilities Act.
While the 7th U.S. Circuit Court of Appeals ruled that leave that extends beyond FMLA isn’t considered a reasonable accommodation, the Equal Employment Opportunity Commission and other courts disagree.
That’s why it’s important to carefully review policies and keep up with developing laws.
Medical marijuana case law is also evolving. In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs for using the drug could bring claims under state disability laws.
“HR professionals should review their drug-testing policies and practices and consider consulting counsel before taking any adverse action following a positive drug test for marijuana in a state in which medical or recreational use is legal,” said Cheryl Orr, an attorney with Drinker Biddle in San Francisco.
5. The bigger picture
With all the state and local changes, it may no longer work to have a single handbook with blanket policies for workers in different locations. “Now is a good time to add state supplements to the handbook that are distributed only to employees within the relevant state,” said Jeffrey Pasek, an attorney with Cozen O’Connor in Philadelphia.