As the coronavirus continues to upend businesses, many employers are scrambling to figure out the logistics of the digital workplace and navigate the legal issues that can arise when employees work from home. For employers that find themselves in the digital workplace for the first time – or for those that want a refresher – here are the basics of telecommuting.

Teleworking policies – Yes or no?

As COVID-19 and social distancing push employees out of brick-and-mortar buildings and into home offices, some employers are trying to figure out the policies, procedures, and best practices of teleworking for the first time.

First things first: do you need a teleworking policy (or do you need to revise your current one)? While the answer is dependent on your company and the needs of your business, it is generally a good idea to have a policy that explains

  • timekeeping procedures for non-exempt employees;

  • expectations regarding working hours and overtime;

  • information about rest and lunch breaks (particularly in states where breaks are required);

  • data security requirements;

  • prerequisites for the use of personal devices for business purposes;

  • accommodation request procedures;

  • expectations for conduct;

  • reimbursement of business-related expenses, particularly in states such as California and Illinois that have statutes regarding it; and

  • any state-specific obligations related to employees working remotely.

Even if your company had a teleworking or bring-your-own-device policy in place before the pandemic, it is a good idea to take another look at it now. You might even want to consider creating a policy specific to the COVID-19 pandemic if, in less anxious times, your business’s needs are better served by having your employees physically present most of the time. Further, the best policy in the world does little good if no one knows about it. Thus, consider sending a communication to all employees who are working remotely regarding the company’s policies and expectations.

Teleworking and overtime

Keeping track of hours worked is relatively straightforward when an employee clocks in and out at a brick-and-mortar establishment. Employees can submit their time on a timesheet, use a biometric clock, or submit their time electronically through an online portal. The list of acceptable methods goes on and on. But adapting the time reporting procedures to teleworking employees is crucial, particularly in light of the inability to physically monitor employees while they work.

The Fair Labor Standards Act requires employers to pay non-exempt employees for all hours worked, regardless of if those hours are worked in person or at home, and to pay overtime for all hours worked above 40. Thus, employers need to establish how workers working remotely should track and report their time. Employers could continue to use paper-based methods, but this approach may prove more difficult during the pandemic. If employees have already been logging time on online portals or applications, then the employer can often continue this practice.

Teleworking and data security

Employers who permit or require teleworking also need to consider data security and ensure all employees are trained in basic cybersecurity.

Employers should ensure employees’ access to the company’s network is secure.  Employees may be tempted to use unsecured networks like public Wi-Fi, but companies should caution against using such networks and provide secure options like a well-maintained virtual private network. Further, particularly when employees are using personal equipment for business purposes, companies should require that the equipment has the most up-to-date firewalls and antivirus software installed. Businesses may also want to consider whether two-factor authentication or encryption is appropriate or required.

Employers should also ensure employees receive a refresher in cyber awareness to guard against phishing attacks, malware, or other scams. The FBI recently issued a public service announcement about an increased number of cyber schemes where scammers are trying to take advantage of the coronavirus pandemic by offering fake stimulus checks, proposing counterfeit “treatments,” and sending fake emails allegedly from the Centers for Disease Control. Warn your employees about these schemes and tell them to be wary of outside emails containing imbedded links or that ask for personal or financial information.

Teleworking and social isolation

Finally, even for employees who are used to teleworking, the social isolation imposed by COVID-19 can be daunting. Employers should consider options to connect the workforce and alleviate this social isolation while encouraging regular communication among team members. For example, employers can utilize videoconferencing or other apps that support remote face-to-face communication. Such measures may not only raise employee morale in these challenging times but also increase productivity.

If you have any questions regarding the digital workplace, please reach out to a member of Constangy’s Digital Workplace and Data Privacy Practice Group.

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