Step 2: Getting Started

As you continue to set up your team for the long road ahead, do you have a handle on what they need, and who pays for it? Today, let’s talk reimbursements.

Review Your Obligations, Check Your Promises

Employers should look at IRS regulations, their state and city laws, as well as their own policies (check the handbook) and contracts (check the employment agreement) and retrain supervisors on how to field reimbursement requests.

Draft a (Better) Policy

You may have a reimbursement policy; you may not. Either way, now is time to draft a good one. A policy can void an old version that just does not make sense now that the world is upside-down … just ensure that you do not retroactively apply it in violation of your wage and hour laws.

The following jurisdictions already have reimbursement laws in place:

  • California
  • Illinois
  • Iowa
  • Massachusetts
  • Montana
  • New York
  • Pennsylvania
  • Washington, DC

Your new policy must take care to focus on both your state laws and your business needs. Boilerplate language can spell financial disaster, especially where your state puts the onus on you to provide one or accept the consequences (a/k/a, the receipt) of a vague policy without parameters.

For example, in Illinois, employers must reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to service performed for the employer.” This blanket mandate can be supplemented by a policy that complies with Illinois law while restricting spending.

However, those without a policy have little room to avoid an expense where an employee purchased an item for the office at the direction of a supervisor, for example. In contrast, employers who have a written policy, such as requiring pre-approval, can refuse to reimburse an employee who does not comply. Employers concerned about a lagging accounts payable can require employees to submit invoices and/or receipts relatively promptly, though no sooner than 30 days after the expenditure.

Budget!

Which tools do remote workers need more of? Which tools have they lost? Beware of costs that may grow with your remote workforce. For example, as we change how and where we work, employers should expect more employees to request reimbursement for their cell phones. After all, it is unlikely that they took their landline from the office when they “went home for the weekend” back in March. It stands to reason that many are using their cell phones for all work-related phone calls. California Labor Code section 2802 reads similarly to Illinois, and California courts have ruled that necessary expenditures include cell phones. Stating that the “purpose of this statute is ‘to prevent employers from passing their operating expenses on to their employees,’ ” the court in Cochran v. Schwan’s Home Service, Inc. held that it does not matter whether the employee has a plan with unlimited or limited minutes:

“Does an employer always have to reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone, or is the reimbursement obligation limited to the situation in which the employee incurred an extra expense that he or she would not have otherwise incurred absent the job? The answer is that reimbursement is always required. Otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee. Thus, to be in compliance with section 2802, the employer must pay some reasonable percentage of the employee’s cell phone bill.”

Companies should expect to tackle sooner rather than later the challenge of determining what a reasonable percentage of an employee’s cell phone bill might look like, based on each employee’s role and usage. Additionally, if California precedent is a harbinger of things to come (spoiler alert: it always is), employers should expect that accounts on Zoom, Microsoft Teams, and other virtual platforms will be the employer’s to pay.  

So, like everything about this new world, remote work changes the landscape on reimbursement. It’s time to assess your policy, communicate any changes and budget for the future.

The bad news is that you may have to pay for things like cell phones, if they now serve as the office line. The good news is that your travel budget likely left you some wiggle room.  

Step 1 (cont.): COVID-19 and Kids

We’ll talk about a variety of issues to troubleshoot in a remote employment setting, but today, let’s talk about kids. As employers continue to work hard to set up virtual offices that help their employees thrive, the topic of children is also making the news. More specifically, what do to with them? As every working parent knows, children do not always respect boundaries. How do employers handle the fact that teleworkers may not be fully engaged during their regular workday, due to diaper changes, demands for snacks, or temper tantrums?

Introducing my new favorite portmanteau: Work from Homeschool. It’s a real thing, and companies must decide how to handle a phenomenon that is unique to COVID-19.

Understand the Laws

Not all employees may be able to work. The Families First Coronavirus Response Act (FFCRA), a law passed in April in response to the pandemic, provides for up to twelve weeks of paid leave (capped at the greater of two-thirds of wages, minimum wage, or $12,000), for employees who are “unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.” This relief is subsidized by the federal government, with employers deducting qualifying leave from their federal employment tax liability.

FFCRA applies to private businesses with fewer than 500 employees, and some public employers. Small businesses with fewer than 50 employees may qualify for an exemption if the leave requirements would “jeopardize the viability of the business as a going concern.” Parental leave is available to all employees who have been working for thirty days or more for an employer.

The Department of Labor has issued multiple FAQs on the act, which is in effect through December 31, 2020. As the world grapples with the effects of COVID-19 on children and community spread, I would expect that FFCRA will be extended or be replaced by other relief if school cannot reopen in the fall. It’s important to loosely understand its offerings, and provide notice to your employees of the same.

In addition to the new FFCRA, the Equal Employment Opportunity Commission (EEOC) continues to enforce Title VII and its prohibition on sex discrimination. Recent EEOC guidance reminds us that “employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics. For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.”

Go Back to the Basics: Communicate

There will be employees who can and want to do the Work from Homeschool thing without taking leave. Before you decide on how you will react to their proposal, consider:

  • Are employees with children struggling?
  • If some are, what do they need? Is it time, space, quiet, something else?
  • Do certain employees need to be on the phone or video during the day?
  • Can you be creative so that employees may do their work in unconventional ways, or during “off” hours?
  • Are your supervisors consistent in how they react to employee’s requests regarding childcare?
  • Have supervisors received training on bias, including benevolent bias?

You want to anticipate these issues before you take any alleged adverse action against employees. Recently, a former employee of Hub International alleged that the company terminated her due to her children making noise in the background of calls. The employee claims that her supervisor reprimanded her by telling her “The kids could be heard on business calls with clients. It’s unprofessional” and to “to take care of” her “kid situation.” The employee, who sued both the company and her supervisor, further alleged that she had endured “sexist statements” from her supervisor, who was “motivated by a clear bias against mothers.” We’ll be watching to see how this case unfolds.

One final note: while treating everyone the same is generally a good thing when it comes to a claim of discrimination, it is not without risk. In late June, Florida State University communicated to all employees via email that the University would revert back to its “normal policy” that does not allow workers to care for children. The email came as COVID-19 cases were rapidly rising in Florida. Needless to say, the communication caused panic and a widely publicized backlash. In July, the University clarified that workers are not prohibited from caring for children, but may have to work with their supervisor to develop alternative remote schedules or, in cases with inflexible hours, to request leave: “We want to be clear – our policy does allow employees to work from home while caring for children.”

These are not normal times, so it’s acceptable to have lot of questions. As you’ll repeatedly hear from me, now more than ever, you should keep the lines of communication open, fostering a dialogue between employees, supervisors, and human resources, when it comes to childcare concerns and so much more.

Step 1: The Set Up

You may be new to remote employment, or you might have dabbled in it in the past. Pre-pandemic, many offices had a couple of people who worked from home. Today, remote employment has a new look. More people want it – and more people need it.

Depending on where you live, this arrangement may be just as much for the company’s benefit as it is for the employee. After all, unlike anything we have experienced in our lifetime, this crisis grows with the help of people. In the COVID-19 era, keeping people away from others is rather sad, but also, rather important.

The good news? Remote employment is much like regular employment. There are, of course, employees. They communicate to you their needs. They tend to need equipment. How do you set yourself up for success in this new environment? Here are a couple of tips:

Communicate with your staff

Now more than ever, communication is key. Why and how often you communicate with your staff will undoubtedly change in a remote world (we will dive into that topic in another post). At the set up phase, be sure to ask the following questions:

  • How are you doing?
  • Is everything working the way it should?
  • Is there anything you need?

Be sure that your supervisors are sensitive to employees’ preferences, no matter how trivial they may seem.  It’s good for morale and liability. While the ADA does not require that you give employees their favorite type of chair, for example, you will be required to offer an effective alternative. An employee who needs lumbar support may require a cushion, or a chair, or delivery of their chair from the office to their home.

As we’ll discuss in a later post, these accommodations are typically reimbursed by the employer. In some states, it is required.

Strengthen (or Form!) Virtual Bonds

There’s an old saying that I actually made up: People join a company, but leave a boss. I might add that the newer generation might even “ghost” a boss – quietly exiting stage left and never returning.

As an employer, you know that turnover, and the subsequent interviewing, onboarding, and training, is very costly. Therefore, retaining employees should be a priority. In a virtual world, keeping employees happy might seem more difficult. But do not despair!

As it turns out, many employees are willing to miss company outings and happy hours in order to gain time otherwise spent commuting. In fact, according to OWL Labs’s State of Remote Work Report 2019, remote employees are more loyal and less likely to leave a job than on-site workers. In fact, remote workers say they are likely to stay in their current job for the next five years 13% more than on-site workers.

Yet, in the COVID-19 era, the competitive advantage remote employers enjoyed before has been greatly reduced. How do you distinguish yourself? Compensation is one way, but let’s talk culture, which is far more nuanced.

I recommend employers think through the following when assessing how to best develop bonds in their virtual office:

  • Did employees work from home in the past? What can we learn from them? How were they perceived?
  • Who are the individual contributors in the Company? Do they have mentors?
  • How many people does the busiest manager manage? Should that change?
  • Does the office have technology to support sharing of ideas, not just deliverables?

Retrain

Even if you are flexible and welcoming of our new remote world, you may have supervisors who are uncomfortable managing people who they can’t see. Micromanaging does little to foster trust in a remote work environment, but it didn’t help in an on-site environment, either.

In some ways, COVID-19 creates an opportunity for a clean slate. Use it to retrain supervisors on how to give employees ownership of their role, along with constructive feedback along the way. Remind them of the ways in which remote work can be uniquely draining on employees – especially during a global pandemic. Ensure that they know the resources offered by your Company, such as telehealth, an EAP, or a meditation app, so they can remind their direct reports.

If you have your own tips on how to set up the remote office the right way, please email me and I may interview you on The Remote Employer, a new podcast launching soon.

It Was Friday the 13th

Do you remember where you were the day the office went away?

Four months have passed since the modern office vanished. It was Friday, March 13, 2020. Like any good scene in a scary movie, it happened quickly – with little warning – though there were whispers here and there.

If you were a train commuter back then, you cautiously boarded on Monday, March 9, aware that the formerly acceptable sardine-like configuration of human bodies was not smart, but unaware that it was the last week you would be inside another man’s armpit.

If you were a music lover, you might have caught a live show, aware that nobody coughed between sets, but unaware that the venue would shutter in days and, perhaps, never reopen.

If you were a proud working parent who finally “had it all” – thanks to a mixture of some planning, much outsourcing, and a whole lot of luck – you were slightly annoyed by the talk of a school closure, but never imagined that a pushed-up spring break would become … summer.

Yes, the world is different in July than it was in March. And if you are an employer, your team is living with you in that world. Some are terrified. Others are lonely. A couple feel just fine (they tend not to have children at home). The minute #togetherapart started trending, the office changed forever. For many sectors, what was once a perk became a necessity. For other sectors, what was once a job became an essential service. We were no longer navigating a discussion over flexible work policies, #MeToo, and work-life balance. Like the 2020 primary, the hot topics lost their heat. What matters now? Two things: COVID-19 and how you respond.

The Brave New Remote World is here.

This blog will analyze the remote employer. We’ll look at trends, challenges, liabilities, and opportunities. We’ll study issues like safety, privacy, morale, and organization, and tackle the legal implications of this new world, including ADA accommodation, FLSA wage and hour, and, yes, #MeToo – unfortunately, sexual harassment exists on the internet.

Whether you were a remote employer in pre-COVID days or are just getting started, we hope you’ll follow along.

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