Legal experts say adapting to remote work means time to review workforce policies

Working remotely has become commonplace because of the pandemic, but there are numerous legal, ethical, moral and practical issues to consider when managing these workers, employment law experts say.

“Employers should really try to overcommunicate, especially at the beginning of the telecommuting process,” said Mike Palmer, a partner with Barnes & Thornburg in South Bend.

Normally, that would include working out details in a telecommuting agreement ahead of time to spell out details of how the working relationship will play out.

That includes logistical details like how to get mail delivered to the office directed to the employee in a timely manner. Should it be sent by courier? Dropped off by the manager or other employee driving by the telecommuter’s house on the way home from the office? Scanned and sent by email? Sent daily? Weekly batches?

At the onset of the pandemic, with many office workers suddenly sent home to work remotely, issues like this were addressed as they arose. But now that the routines of working from home have become commonplace, and with a year of experience to review what works and what doesn’t, there’s time to ensure businesses are protected from legal issues and employees are managed effectively.

“Mostly what we’ve seen right now is employers getting used to the idea of people working remotely from home and grappling with the idea of how much supervision should we be doing and how should we be doing it,” said Natalie Shrader, a partner with Burke Costanza & Carberry in Merrillville.

Clearly defining expectations is key.

“I think it’s a good idea to have an employee sign off” on agreements that spell out expectations for both the employee and the employer, advised Janilyn Daub, a partner in Barnes & Thornburg’s Elkhart office.

Isaac Carr, managing partner with CCSK Law in Valparaiso, said corporate culture is an important consideration in managing remote workers.

“Is it more hierarchical or more egalitarian?” he asked. At some businesses, people get a voice, but they don’t get a vote.

Carr recommends tailoring employment policies to make sure they reflect reality and what the employer is trying to accomplish with employees. Policies should lay out expectations and accountability. Go over it with employees and seek their input. “It helps them take ownership and responsibility,” he said.

“I’m a big fan of getting your employees involved in whatever procedures you’re putting in place,” Carr said.

Instead of being sneaky, explain why the policies are needed and offer a chance for employees to suggest ideas to refine them.

Don’t just consider what’s legally required, either, he said. Think about what’s ethical and consider how you would want to be treated if you were the employee.

“Be a good person. Just because it’s legal … doesn’t mean you should do it,” Carr said.

Preserving corporate culture

Shrader said corporate culture is important to maintain.

“It gets down to good communications,” she said. “You want to continue to have your good culture between management and employees.”

If people are working in teams, regular team meetings should be held. Managers should also check in, one on one, with the stated reason of facilitating the employee. How are things going? Is there anything the employee needs? What can the manager do to help the employee work effectively and efficiently?

“You want to keep whatever projects you’re working on intact,” Shrader said.

“It’s appropriate to have the appropriate kinds of communication,” she said. For workers at home, that includes checking in via videoconference, or similar means, so the remote employee doesn’t feel they’re alone at home.

Sometimes, however, remote workers need to be summoned to the office.

“There are times when face-to-face is best,” Shrader said. If that’s the case, try to give 24-hours’ notice so it’s not an inconvenience.

Carly Brandenburg, a partner with Eichhorn & Eichhorn in Hammond, noted an employee might be dealing with children doing e-learning at home while tackling job duties at the same time.

The Americans with Disabilities Act applies when workers are brought into the office for meetings, Palmer said, so make sure any appropriate accommodations are made for each of the employees.

Different work environment

Concerns about social distancing during a pandemic are among factors that need to be considered when planning in-person meetings, said Nicholas Otis, a partner with Newby, Lewis, Kaminski & Jones in La Porte.

Otis, a member of the Society for Human Resource Management, said making people feel comfortable about in-person meetings is important.

“I’ve got a couple of really large conference rooms in my office,” he said, where he can meet with clients and keep his distance. But sometimes that isn’t enough.

Otis has watched partners in his firm go into the parking lot to stand outside elderly clients’ vehicles while they sign wills or conduct other business that can’t be done virtually.

“You have to find ways to continue to meet people,” he said.

Maintaining morale is important, too.

Otis has heard of putting petting zoos on Zoom among other techniques to boost morale.

Others have done virtual cooking events where they prepare foods together yet separately, Shrader said. Some companies have sent cocktail mixes to employees so they can enjoy a virtual cocktail party together.

“Our firm normally has social functions throughout the year, so we all get together and enjoy each other’s company,” she said.

Maintaining morale is just one of the challenges facing employers with remote workers. So is onboarding new employees. Daub said it is easier to manage remote workers who have been accustomed to working in the office because they already know how the routine works. New employees pose a basic challenge — how to train them when they can’t see what others in the office are doing, she said.

Otis said working remotely really stunts the ability of new employees to learn from more experienced lawyers.

Clerking for a judge, for example, involves more than clerical work, he said. It’s also seeing how the judge reasons things out, how the law is put into practice. The same is true of other professions.

New lawyers learn from observing older partners. Those interactions aren’t happening as often now, so the training is lagging. It is tough to put a value on learning by observing, Otis said.

“For a while, it’s all right, but I hate Zoom,” he said.

Reviewing policies

A year into the pandemic, employers should evaluate the remote working experience, including how productive the employers were compared to working in the office, said Jim Jorgensen, a partner with Hoeppner Wagner & Evans in Valparaiso.

Palmer said reviewing productivity and lessons learned can help establish parameters for working remotely.

When it comes to productivity concerns, we’re in a new frontier, Brandenburg said. There’s no one-size-fits-all approach.

“I’ve had many clients call with concerns about how they should handle specific issues that arise with their employees at home,” she said. “One of the most common things that comes up is how an employer should handle concerns that an at-home employee is not actually working as much as he or she claims to be (or) perhaps the work quality or quantity is diminished, but the employee claims to be working the same hours.”

Before allowing an employee to work from home, employers should ask themselves whether this is an employee who is productive and has good time management skills, Shrader said.

Jorgensen suggested using the computer to check in and check out at the beginning and end of the day and, as appropriate for company policies, before and after lunch or other breaks. Then use the same means as before for the employee to affirm the accuracy of these records.

“Obviously, the employer wants to make sure that it is accurately recording the time that the nonexempt employee is working,” Jorgensen said. It is trickier for salaried employees.

“Then it’s much more difficult to measure the quality of the work and the quantity of the work if they’re offsite,” he said.

Jorgensen said employers should think about how often and how the employee is obligated to report on their progress. Are multiple reports each day appropriate? Daily? At the end of the week? Whatever satisfies the employer to know the employee is doing what they’re directed to do.

“Everybody has to be accountable for the work they are doing or not doing,” Jorgensen said.

When an employer is concerned about productivity, Brandenburg wants to know as much as possible about the unique circumstances. Is the remote worker also a caregiver? Does the employee have sufficient information about expected performance metrics? Does the employer check in with the employee? Is the employer able to reach the employee during work hours through Zoom or phone? If the employee is hourly, are they required to track time spent on various tasks?

“The central problem when transitioning from an office place to home-work model is usually a lack of communication,” Brandenburg said. “Employees lack clarity regarding the employer’s expectations, and employers lack easy access to employees.”

She advises employers to first communicate directly with the employee orally to discuss the problem and work together to identify the specific problems so solutions can be found.

“From there, I counsel the employer to create a written record of the interaction and corrective action plan — what did you ask the employee to improve, were there impediments to achieving those goals that were identified during the discussion, and what is the action plan moving forward?”

Carr noted the availability of technology to track performance. “Monitoring can come in many forms,” he said, including monitoring internet use, keystrokes, webcam and more. Employers also can monitor phone calls, emails and GPS tracking.

“The way I see it, when it comes to this employee monitoring, it’s a balance between privacy and employee productivity,” Carr said.

He stressed the importance of keeping good records. “Recordkeeping protects against lawsuits,” he said.

Jorgensen said, if an employee uses personal equipment, monitoring could reveal private information the employer isn’t entitled to. Legitimate privacy rights of the employee must be protected.

“In a more perfect world, you would have (the employee using) company-owned equipment,” he said.

As a practical matter, remote tech support is more difficult when the equipment isn’t owned by the company.

“In any case, the employer probably has a computer-use technology policy,” Jorgensen said.

Shrader said, if a business does not have a technology policy, now is the time to draft one.

“Employees should sign off on that policy, (and) occasional reminders are good, too,” Shrader said.

Carr said policies should be tailored to reflect reality and what you’re trying to accomplish with employees. Go over it with them and seek their input.

“It helps them take ownership and responsibility,” he said.

The company policy should spell out how employees are monitored and what behaviors are monitored. It also should remind employees they have no expectation of privacy in their communications during their employment, she said.

“There has been an increase in electronic monitoring of employees,” Shrader said, including installing an app to monitor keystrokes or forward emails electronically or automatically search employees’ emails.

“It’s not always the right thing to do for your employees,” she said. “It might lower the trust between a manager and an employee,” and it might lead to loss of morale or productivity.

In implementing electronic monitoring, employers need to make sure they avoid getting in trouble with wiretap laws and other regulations.

Legal considerations

A remote workforce creates many other legal considerations, including compliance with employment and tax laws in whatever states the workers live in.

Otis has an undergraduate degree in accounting. While at the Valparaiso University Law School, he led the Volunteers in Tax Assistance program, which frequently dealt with issues of employees who live in Indiana but work in Illinois.

It gets even more complicated. Each venue where a person works can have a tax claim on the person’s income. “It’s not uncommon for a professional athlete to pay taxes in 20 states, for example,” Otis said.

In theory, much “office” work can be done anywhere there is an internet connection.

But if employees move to other states, that complicates matters for employers because they then have a new set of laws to follow.

Employers who post information on employment laws in the workplace can put these postings for each state on the intranet site, Palmer said.

Employees who change their residence should be required to notify their employer immediately, Daub said.

That said, employers should set expectations for remote workers who might be summoned to the office. The employment agreement should spell out that employees need to be available to attend meetings in the office on a day’s notice, for example, she said.

Worker compensation law is another potential pratfall for employers with a remote workforce.

“I have to imagine that is extremely complex now,” Otis said.

What happens if they’re working at home and are injured? Daub asked. Employers need to reserve the right to inspect the workplace for safety issues, even in the worker’s home, she said, even though it’s highly unlikely that someone would ever exercise that right.

Prepared employers will put their insurance carrier on notice about employees who are working remotely.

Another legal challenge for employers has been the I-9 process to verify a new employee’s legal right to work in the U.S. The employer is supposed to review identity documents in person and with the employee present. Because of the pandemic, Immigration and Customs Enforcement now allows a legal agent to be hired to perform this task, Daub said.

A split workforce, with some in the office and some at home, offers another set of challenges.

“Out of sight, out of mind” is a danger for employers.

“The experience of working from home is obviously not going to be the same as working in the office,” Palmer said. Bringing doughnuts to the office doesn’t require sending doughnuts or vouchers for them to remote employees.

However, all employees should have the same opportunities when it comes to work.

Carr urged employers to keep a record of benefits being given to people. Make sure you’re not giving more leads to someone in the office than to a remote worker, for example.

“It’s a lot easier to work with a person who’s sitting there physically,” Carr said, but remote workers shouldn’t be slighted.

Another factor to remember is that a remote worker’s workday starts at their workplace — their home. If they’re summoned to a meeting in the office, their travel time to the office is compensable.

As employers weigh whether to have a split workforce, “sooner rather than later,” talk with an attorney, Jorgensen said.

“For employers, it’s a very complicated issue with a lot of decisions each way,” he said.

Click here to read more from the June-July 2021 issue of Northwest Indiana Business Magazine.