Avoiding pitfalls, risks when employees work remotely

Over the next decade, U.S. hiring managers predict, more than a third of their full-time permanent employees will be working  mostly remotely, according to a 2018 report by Calif.-based Upwork.

While there are definite benefits to this,  there are some pitfalls and risks associated with employees working outside the traditional office environment, experts say.

“Companies need to ensure that their policies cover remote workers and issues that may arise,” says David Mahoney, a partner and labor law group member of SilvermanAcampora in Jericho.

This involves setting “objective parameters,” he says, to ensure employees are offered flexibility  that does not undermine the company’s productivity or run afoul of applicable employment laws.

To start, firms need to determine whether telecommuting/remote arrangements are right for their business and identify which positions are eligible, says Mahoney.

 The eligible positions should be spelled out in company policy, he says, along with any restrictions and how to request a telecommuting arrangement.

 Beyond those, Mahoney suggests  having a stand-alone agreement  with each employee  on all the specifics of his or her individual telecommuting arrangement.

Make it clear that even off-site  remote employees are also required to continue to comply with all other company policies, he says.

Once  employers open the door to telecommuting arrangements, they need to guard against “potential discrimination claims that might assert that privilege was extended to one class of employee and denied to another protected class,” says Richard Finkel, a labor and employment attorney at Bond, Schoeneck & King in Garden City.

 So it might benefit a company to explain in its policy that such arrangements are available on a case-by-case basis correlating to the position, job description and individual circumstances, he says.  

Other issues to consider are wage and hour laws, says Finkel. There should be a way to track employee hours for non-exempt employees who may be entitled to overtime. And if you don’t want to give overtime, then you need to make it clear they need prior approval if they want to work outside normal business hours, says Finkel.

This includes answering emails after hours, says Susan Accardo, a partner at Accu Data Workforce Solutions in Hicksville, a payroll outsourcing provider. Her firm offers companies a time-keeping option as part of its offerings,  such as the ability to clock in and out via a mobile app.

Other areas employers need to consider are payroll withholding tax and the state unemployment tax, which can differ depending upon the state where the employee is based, says Accu Data president Ralph Accardo. Accu Data manages these different jurisdictional requirements for individual employees through an internal software system.

“As a business owner there are a host of different payroll tax and HR concerns that employers should be aware of for employees that work remotely in multiple states,” says Susan Accardo.

Another key concern is data protection and privacy.

“Regardless of where an employee’s working … that employee is creating business records, and those records have to be protected,” says Nancy Flynn, executive director of  the ePolicy Institute in Columbus, Ohio.

If the company has the financial ability, she recommends it provide remote/telecommuting workers with electronic devices to be used solely for business. That  will ensure there are proper protections on the devices, she says.

It also protects the employee because in the event of a lawsuit or regulatory investigation, it’s possible the employee’s device might be subpoenaed or seized, she says.

 Any company that is not providing the devices needs a solid policy that lays out the rules and parameters on use of the workers' own devices for work, says Flynn. For example, if the employee leaves the job, the company has the right to delete its business records from the personal device, she says.

“At the end of the day," she says, "the company has to maintain control over its business records and confidential information.”