Analyzing case law can help employers develop the ability to spot potential trouble, an employment attorney said May 15.
“You want to be able to call someone to make sure you’re doing it right, or get a third party to bless your arrangement,” said James Reid, of Honigman LLP, speaking at the 41st Payroll Congress in Denver. “They’ll be sued instead of you.”
Remote Work Litigation Trends
The increasing demand for remote work has left many employers with antiquated work policies that do not address the nuances of at-home employment, a risk that can expose employers to costly litigation. “I really believe [employers] need a specific remote work agreement,” said Reid, who noted the importance of preventative strategies.
Remote work agreements should specify tracking and reporting of time worked and must clearly delineate company policy regarding remote work in other states. “Employers should also keep track of their remote employees’ location” he noted, because it might expose an employer to additional tax and withholding liabilities.
Tracking work location is crucial for employers as labor laws vary greatly across all states. “Sick leave and privacy laws are different in different states, and you want to apply them accordingly,” said Reid. “Be aware of local ordinances and discrimination laws.” Reid encouraged employers to model their workplace policies after the states with the most generous protections.
The COVID-19 pandemic led to a sharp increase in romantic relations at work. “During Covid, 58% of employees [admitted to being in a] romantic relationship with a coworker. So, if it’s not you, look next to you,” said Reid, drawing laughs from conference attendees. Overall, “75% of companies don’t have a romance-in-workplace policy,” he said, adding that “those who do likely have nothing covering remote work.” Proactive risk mitigation requires a clear workplace romance policy that covers remote work.
Employers should also consider the inclusion of an emoji policy to avoid confusion or claims of harassment due to misinterpretation. “I’m guilty like the rest of sending an emoji,” Reid said. Employers can alleviate any issues by establishing parameters for approved use of emojis, especially for communications between senior employees and their subordinates. He also noted the importance of storing internal communications as an employer’s best defense. “How are we capturing this data to show communications are consensual?” he asked.
Discrimination lawsuits based on mental disability have also increased due to the rise of “Long Covid,” a newly covered disability under the Americans with Disabilities Act. Under the act, any employee who is “regarded disabled” must receive reasonable accommodations, among other protections. “There are ways to accommodate [employees] without giving them exactly what they ask for,” he said, stressing the proactive role employers should take as a powerful tool for risk mitigation.
“The biggest issue I’ve seen this year is lack of compensation” Reid said. “[Every hour worked] needs to be reported and paid for.” Reid emphasized the importance of paying for all hours worked, regardless of whether the employee violated company policy by overworking. “If employees work outside of your rules, you can write them up for violating procedures, but they must be compensated.” Employee breaks should also be fully honored, with no interruptions, as failing to do so will lead to liability for underpayment. “If you have automatic document policies, make sure you have a way to allow employees to report their interrupted breaks [to ensure adequate compensation].”
Most employers are unaware that time spent waiting for Covid-19 screening isn’t compensable unless testing is essential to the operation of the business, Reid said. “If you’re in healthcare, sure [you must be compensated], but if you are solely going through testing to be a construction worker, it’s likely not essential.”
Speaking on expectations for 2023, Reid pointed to an increase in pay transparency laws across the country, along with new expected exemptions. To comply with increasing transparency laws, Reid recommends employers show their full transparency disclaimer and remove any requests for salary history from job applications. “Ask applicants what they want to be paid and never ask what they used to make. And offer them a range of pay for the position,” he said.
“You’ll likely have to give applicants the higher end of the pay range,” he joked, “but at least you’ll avoid the issue [of not being transparent].”
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