Managing Remote Workers May Be More Complicated Than You Think

One of the biggest trends that arose from the pandemic has undoubtedly been the “work from anywhere” mindset. Once both employers and employees realized that work could be performed effectively without sitting in a traditional office, things started to change. Some employers chose to close their brick-and-mortar worksites for good, while some workers decided to relocate to be closer to family or to live in a region with a lower cost of living.

Employers often wonder whether there are legal implications for allowing employees to work temporarily or permanently from a state in which their organization has no business presence. It comes as a surprise to many that allowing an employee to work remotely from a new state is not as simple as they originally thought.

When employers allow an employee to work remotely from a different state, the employer must register to do business in that state and comply with its labor laws. This includes employer payroll and income tax withholding obligations, as well as wage and hour laws and statutory benefits, just to name a few.

Tax Implications

Because income tax requirements are based on where income is sourced, rather than where an employer is headquartered, employers must determine their tax obligations based on the state in which their remote employee is performing work. This generally includes registering with the state as a new employer, withholding employee state income tax, and remitting employer state payroll and unemployment taxes.

Wage and Hour Laws

The Fair Labor Standards Act (FLSA) governs wage and hour requirements at the federal level. However, many states have enacted their own laws that are more generous to workers than the FLSA, and employers must comply with these policies, as well. For instance, some states require that meal and rest breaks be provided, where federal law does not. Minimum wage rates and overtime pay laws differ by state, as do final pay requirements. A handful of states also have minimum salary thresholds for exemption that exceed the federal requirements.

Paid Leave Laws

While not required at the federal level, many states and localities have passed laws mandating paid sick leave for employees. The laws vary by jurisdiction with respect to employer size and the amount of leave required, and they often include notice requirements.

Similarly, numerous states have laws regulating vacation leave when voluntarily offered by employers. These laws might require employers to pay out accrued vacation leave upon separation, prohibit use-it-or-lose-it provisions or impose other limitations on employer leave policies.

Additional state leave laws might also entitle employees to time off from work for other reasons, such as absences related to domestic violence, voting or jury duty, or family and medical leave.

Other Considerations

The nuances of state laws do not end there. Worker anti-discrimination protections vary at the state level, as do pay equity laws and sexual harassment training requirements. Some states require employers to reimburse employees’ business expenses; others have statutory disability benefits. The list goes on. Employers will need to examine their obligations under various state laws when determining how to manage their remote workforce.

 

4 Tips for Beating Work-From-Home Burnout

Zero commute time, savings on transportation costs and takeout lunches, more time for mid-day workouts—there’s no doubt that working from home (WFH) has its benefits. But with many organizations choosing to stay remote for longer to protect their workforce from COVID-19, employees are finding this situation to be less than ideal.

The “freedom” of working from home comes with its challenges. Working parents are struggling to balance childcare and distance learning during working hours, pets are demanding attention at all hours and the constant interruptions of family or roommates can break focus and
productivity. Additionally, many employees have fallen into unhealthy habits and lifestyles—late nights, poor ergonomic set up, reduced physical activity and the inability to disconnect. Exacerbated by the lack of communication experienced in the physical workplace environment, an increasing number of people are suffering high stress, anxiety and burnout. Your workforce needs help and fast, before the effects of employee burnout begin to impact your business.

Included is a free brochure with information on how to recognize symptoms of employee burnout as well as tips to help employees prevent WFH burnout.

5 Things Employers Should Consider When Maintaining Telework During COVID-19 And Beyond

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:

• The need to interact in-person with others to perform the job;
• Whether upfront technological costs are outweighed by long-term remote work benefits;
• Security needs and the ability to maintain security remotely;
• How a position becoming remote affects other employees; and
• Predictability of job needs.

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:  

• On-call time: Is the employee waiting to be engaged or engaged to wait? This oftentimes depends on the extent to which the employee cannot use the time for their benefit.
• Unauthorized time: Do you have a policy prohibiting unauthorized time, and does it apply to “overtime” in the legal sense, or “extra hours”? The time must be included as hours worked, but the employee may still be disciplined for working without permission.
• Commuting: Though generally commute to work time is not compensable, a non-exempt employee who might telework but must come to the office before or after teleworking for some portion of the day may need to have the intervening travel included as hours worked.
• Salaries: Exempt employees who must be paid on a salary basis and work any portion of a week are generally entitled to pay for the entire week. However, there are some exceptions to this rule. Similar, but different, exceptions may apply to other employees with salaries or guarantees.

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:

• Meet with remote workers by phone or video conference to establish measurable goals for employee performance, review employee performance, and listen to and address any employee concerns. After these meetings, you should document the conversation in a follow-up email to the employee.
• Maintain up-to-date written policies, including remote work, confidentiality, and security policies. Employees who have a written guide to your expectations will be better prepared to work productively in the home environment and meet management’s expectations.
• Check in with employees regarding time tracking, contemporaneously document any time policy deviations, and notify the employee of violations through the timekeeping system or by email.
• Provide support to employees, including working technology and IT services.
• Discipline employees who fail to follow established policies. However, when imposing discipline, be careful to consider whether doing so would be discriminatory or retaliatory depending on the reason for the policy violation.

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.

Conclusion

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.

Returning Employees To Work Following Unemployment Requires A Tailored 10-Step Plan Of Action

As businesses gradually begin to ramp up and bring employees back to work, you may soon need to figure out what to do when employees who are receiving unemployment benefits refuse to return to work. After all, they may be reluctant or disincentivized to return to the job, especially if they can turn down your offer and still collect robust unemployment benefits.

As with all unemployment issues, the solution may differ from state to state – and employee to employee. But while the answers will vary depending on your workplace and individual employee circumstances, you can take steps now to put yourself in the best position to respond to such situations. We recommend an individualized 10-step plan of action to minimize your return-to-work headaches.   

The $600 Dilemma

With the enactment of the CARES Act, employees qualifying for unemployment benefits are in line to receive an additional $600 benefit payment over and above the regular unemployment payment. This benefit is courtesy of the federal government program and continues through July 31, 2020. In many situations, however, the additional $600 benefit has created a disincentive for employees to return to work. This phenomenon has caused a dilemma for many employers (and employees) as businesses start to reopen.

At the lower end of the economic scale, many workers are receiving more from unemployment than they would earn from their regular wages. However, to remain eligible for unemployment benefits in all but a few circumstances, individuals who have been placed on a temporary layoff related to the COVID-19 pandemic must return to work if called back. And since most state unemployment agencies require or request that you notify them when you call an employee receiving unemployment back to work, the agency will likely deny ongoing benefits unless the employee can demonstrate good cause for refusing the offer.  

“Good Cause” And High-Risk Employees

The determination as to what constitutes good cause for the job refusal, however, will be viewed in light of the COVID-19 pandemic and will be subject to agency review. The U.S. Department of Labor and many states have emphasized that an unreasonable fear over the risk of contracting the virus in the workplace is not enough to constitute good cause, and state agencies will likely deny unemployment claims if this is the only reason offered. 

Several states, however, including Washington, Colorado, Alaska, and Texas, have already adopted rules outlining when an employee’s refusal to return to work may rise to the level of good cause. These rules generally protect unemployment benefits for “high risk” or “vulnerable” employees, such as workers over 65 or with underlying medical conditions.

For example, Texas Governor Abbott has directed the Texas Workforce Commission to continue providing benefits even when the employee refuses an offer of suitable employment where (1) the employee is 65 or older or at higher risk for getting very sick from COVID-19; (2) the employee has a household member at high risk; (3) the employee or a household member has been diagnosed with COVID-19  (and not recovered); (4) the employee is under quarantine due to close contact or exposure to COVID-19; or (5) the employee has child care responsibilities and the school or daycare is closed (and employee has no available alternatives).  

10-Step Return-To-Work Plan To Minimize Unemployment Concerns

Given the complicated issues created by the COVID-19 pandemic, you should be careful to consider the best approach for your workplace and employees. A thoughtful and transparent return-to-work process will help ensure employee safety and boost morale. Here is a 10-point plan you should implement to ensure a smooth return-to-work for your organization.

1. In all cases, the first step is to develop a plan of action to reopen the workplace that provides a safe work environment for the returning employees. The plan should be consistent with guidelines for return to work developed by the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control (CDC). OSHA requires employers to provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The plan should include an assessment of risk based upon employee exposure levels to COVID-19 in the workplace, which will vary based upon the workplace and job. For example, a risk assessment will be different for an employee returning to an office setting (low risk) versus the risk to a worker on an assembly line (high risk). The risk assessment should also consider federal, state, and local laws to address high-risk or vulnerable employees.
2. Create and disseminate a return-to-work communication that outlines all the steps you are taking to comply with the recommended safety protocols, including policies to address high-risk and vulnerable employees.
3. As noted above, each state is approaching return-to-work situations differently. You should carefully assess the guidelines that apply to your operation before making any decisions regarding an employee’s refusal to return to work or continued employment.
4. Continue to permit alternative work, including telework or work at an alternative location where feasible, and providing partial employment and work share opportunities.
5. Clearly communicate the details of any return-to-work offer in writing (start date, hours to be worked, wages, job duties and location). 
6. If a return-to-work offer is rejected, develop a plan to address for-cause job refusals, including consideration of high-risk and vulnerable employees.
7. If required, report any refusal to return to work to your state unemployment agency.
8. Be sure to document an individual’s refusal of an offer to return to work. This is particularly important if you have taken out loans under the Paycheck Protection Program. The Treasury Department recently indicated that an employer’s loan forgiveness amount will not be reduced if the employer’s written offer to rehire is refused.
9. If an employee expresses concern about returning to work, keep the lines of communication open and try to determine and address any concerns, if possible. If applicable, engage in the interactive process to determine whether a reasonable accommodation can be made before requiring the employee to return to work.
10. Consider implementing a short-time compensation (STC) program, often called a shared work or workshare program, which allows employers to retain employees on a reduced schedule, while unemployment benefits make up some of the difference in income. 

What Else Should Employers Do?

As you begin the process of reopening, you may want to familiarize yourself with several alerts courtesy of Fisher Phillips LLP : 

• 5 Steps To Reopen Your Workplace According To CDC’s Latest Guidance.  
• 4-Step Plan For Handling Confirmed COVID-19 Cases When Your Business Reopens  
• FP BEYOND THE CURVE: Post-Pandemic Back-To-Business FAQs For Employers 

Congratulations to Luann Player!

We are excited to announce the promotion of Luann Player to Vice President of Administrators Advisory Group.

Luann has been with the company for 16 years. While still in college, she quickly advanced from a marketing intern to an insurance and claims specialist and later took on the responsibility as VP of Operations, including overseeing the complete annual renewal process for all clients. She has an immense eye for detail and her passion to get things rights for our clients is unmatched. Luann has been able to play a key role in the company while working remote for AAG from far away places like Hawaii, Texas, and even South Korea!

She has always played a pivotal role at AAG and we are so proud of her growth and accomplishments. Please join us in congratulating Luann!

Remote Work in Times of Crisis: 3 Threats to Employee Engagement

Did you know that the number of remote workers has grown by 140% since 2005? And with the current COVID-19 situation, even more people are working remote if even temporarily. Now consider this: 80% of employees reported they’d be more loyal if they had more flexible work options, such as working from home. These numbers prove my point: Remote work has tremendous value for both employees and organizations—and it’s here to stay.

But for all its rose-colored benefits, remote work has some pitfalls that can take a toll on employee satisfaction, productivity, collaboration, and engagement. This is especially true amid the current coronavirus pandemic.

Many businesses find themselves in a unique situation. Large workforces, who have traditionally worked full time at physical offices, have now been mandated by HR to work remotely for extended periods of time (some for 2 weeks and others for at least 1 month, possibly longer)—and rightfully so given the current situation. 

This is an opportunity for HR teams to inform, communicate, and nurture their newly remote workers through this new landscape and give them the resources and tools to be as productive, engaged, and collaborative as possible.

Threat #1

Social isolation can breed loneliness. And loneliness can spur disengagement.

Employees crave human contact and interactions. One of the great benefits of going into an office every day is the relationships with colleagues. Office workers sit together for lunch (or go out to restaurants together); they share personal stories about their social experiences, families, and friends; they tell each other jokes; and they even share photos and videos from holidays, social outings, and more.

But when regular and meaningful human interactions are suddenly taken away, it can be hard for employees.

In light of the coronavirus pandemic, many business executives have been asking employees to embrace the practice of “social distancing” right now for the sake of keeping employees safe and healthy.

But that’s inevitably going to lead to feelings of loneliness. This is supported by the findings of Buffer’s 2019 State of Work report, which found that 19% of the surveyed remote workers struggled with loneliness. This can, in turn, take a toll on employees’ mental health and well-being.

Now consider this: According to a meta-analysis coauthored by Julianne Holt-Lunstad, PhD, a professor of psychology and neuroscience at Brigham Young University, loneliness and social isolation are twice as harmful to physical and mental health as obesity.

How to tackle it: 

• Take several breaks throughout the day so you can be refreshed and re-energized to do great work.
• Keep the camera turned on when using video conferencing tools.
• Disconnect (both mentally and digitally) when the workday has ended. That means enabling the “Do Not Disturb” feature on your mobile devices and apps you regularly use like Slack.
• Don’t be afraid to set up online one-on-one meetings with colleagues just to catch up (without a specific business purpose).
• Get more personal during one-on-one meetings with teammates. Instead of jumping straight into work-speak, make a concerted effort to spend the first 10 minutes just catching up personally and talking about current events.

Threat #2

Distractions are everywhere, making it hard to stay productive.

In a home setting, the types and number of distractions multiply drastically from those employees might find in office environments. No one is sitting nearby to hold employees accountable. It can be so tempting for employees to watch online videos, scroll through Facebook and Instagram to see what friends are up to, and hop on personal phone calls with friends and family.

A big part of hiring smart people is instilling trust in them to do great work and be responsible for meeting their goals. So instead of panicking about the sudden shift to full-time remote work (or taking on a “Big Brother” mentality/approach to managing them), give employees the necessary technology and digital tools to be as productive as possible. They’ll thank you for it.

How to tackle it:

• Create a schedule, and stick to it. Accept the meetings that are time-critical and impact-related first. Add in additional meetings as they make sense.
• Don’t send employees messages or requests outside of regular working hours (even if they are at home). And make sure managers are cognizant of scheduling meeting times that would be inconvenient and cut into their early mornings/evenings. You’d be surprised by how often this actually happens, according to a recent Work-Life Survey.
• Integrate internal communications tools, like Slack, your employees already use on a daily basis into your scheduling software.
• Be strategic with time management. Implement time blocking within calendars (to focus on key projects for specified periods of time and avoid wasteful meetings).

Threat #3

Social distancing can cause misunderstandings and breakdowns in communication. 

There’s an art to effective, engaging communication. It’s hard enough to do when your employees are standing (or sitting) face-to-face with colleagues, teammates, customers, partners, and other stakeholders. So as large workforces now set out to work remotely full time for a prolonged period of time, communication will get even trickier.

What will likely ensue are misunderstandings, miscommunication about project expectations/deliverables, and possibly even performance issues. Those can lead to tension and animosity among coworkers, which will inevitably give employees more reasons to avoid, or even cancel, meetings that are necessary to brainstorm, innovate, manage projects, and deliver business results. No business wants these outcomes.

How to tackle it:

• Enable the video functionality when holding virtual meetings. Facial expressions and body language can say a lot and work wonders to establish personal, human connections with team members, colleagues, and even clients.
• Be selective in who you invite (and keep group meetings to smaller sizes). Elon Musk has a critical rule for running efficient meetings: If a person isn’t adding value, he or she doesn’t need to be there.
• Be mindful of other people’s times, and be punctual to scheduled meetings.
• If you want meetings to run smoothly (and have the desired input and action items), make sure to ask participants the necessary questions ahead of the meeting.

 

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