The coronavirus pandemic had led employers around the country to move employees to remote work, where that is possible. In the highly regulated California workplace, that trend raises a number of significant questions and possible pitfalls for employers.
Meal and Rest Breaks
The first, and most obvious, issue is tracking work time. Unlike offices, homes do not have time tracking systems and unless your time tracking is maintained online, it is reasonable to ask how you can effectively track employees’ time so that they are not working off the clock and that they are taking required meal and rest breaks. California overtime and meal and rest break laws apply regardless of whether an employee works at home or in an office.
If you have online time tracking software, you should be in good shape. Be sure to make sure employees use it and also that you monitor their time. Employers should be extra vigilant that hours worked are being recorded properly in a crisis like this.
But what if you don’t have that software? You may want to have employees send you an e-mail at the beginning and end of the day and at the beginning and end of meal breaks. Supervisors should be told when employees reporting to them are on meal breaks so they can ensure that those meal breaks are uninterrupted. Alternatively, you can ask employees to record their time and send it to you in a daily email, but if you do that, be sure that your supervisors know in advance when employees reporting to them are on meal breaks so that they will not be interrupted. Again, as always, be sure to monitor these entries very carefully.
Lastly, send your employees a reminder about your meal and rest policies. You may even want to send copies of your policies to them. Remember, your obligation is to “provide” a meal break and to “authorize and permit” a rest break. Even California courts have recognized that employees bear some responsibility for taking timely breaks, and you should do everything in your power to make sure that they are reminded of that.
Reimbursable Business Expenses
Labor Code Section 2802 employers to reimburse employees for “reasonable and necessary” expenses of their employment. What does that mean for remote workers? There are some simple rules and they typically fall in a couple of categories.
Cell phones: Employees who use personal cell phones for work purposes should be reimbursed for a reasonable percentage of their bill for work-related expenses. That amount may increase now if you are having employees work directly from home. You should consider increasing such a reimbursement temporarily, informing employees that you are doing so, and confirming with them that the increased reimbursement is acceptable for them.
Internet usage: Employees who work from home should also temporarily be reimbursed a reasonable percentage for any WIFI expenses that are used for work. It may be as simple as taking their bills and dividing the amount of time they worked (presumably 8 hours) by the number of hours in a day (24 hours) to reimburse them for 1/3 of their usage while this period of unexpected remote work lasts.
Other expenses: Where does it end? What about furniture, electricity, water or other expenses? There are no reported cases we know of on these issues and because of that, we cannot give a definite opinion. The law, however, makes clear that the only reimbursable expenses are those which are “in direct consequence of the discharge of [an employee’s] duties.” Since we are dealing with employees who are temporarily required to work from home due to entirely unforeseen circumstances, we think it unlikely that these tangential expenses would meet that definition.
There are reported cases of home-working employees slipping on a spill in the basement or getting injured while gardening at the same time as a work call. The truth is that those cases are outliers, but you still need to be cautious. As with your meal and rest policies, you should remind newfound home-working employees of your employee safety policies and instruct them to work in a safe location or let you know if that will not be possible.
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As this situation unfolds and more and more employees are required to work from home, you will see wrinkles start to emerge in your policies and interactions with remote-working employees.
Here are a few guidelines:
- First, you are not alone! Everyone is dealing with this unexpected situation for the first time, and we will all learn from it collectively.
- Second, keep an open mind. You will undoubtedly get unreasonable requests from home-working employees, and your gut instinct will be to shut them down before they finish. Resist that temptation, great as it may be. Listen to your employees and understand that they are scared, unknowledgeable, and that they are coming to you for advice.
- Third, review your policies and make sure that they communicate what you want employees to know. Now is the time for clarity and precision in your communications.
- Fourth (and finally), be creative. The cliché has been used far too many times, but we are in uncharted waters and these times call for creative solutions.
As always, we at Hirschfeld Kraemer are willing to help you navigate this uncertain terrain. Be safe, be smart, and be creative.
Dan Handman is a partner in Hirschfeld Kraemer’s Santa Monica office. He can be reached at firstname.lastname@example.org, or (310) 255-1820.