As I continue my examination of some of the programs arising from the ABA Labor & Employment Conference held earlier this month in Seattle, one of the more notable topics was addressing wage & hour laws with employees now working across the country.
The great reshuffle has had a significant impact in the workplace since more employees are continuing to work remotely. Employers who used to only have to worry about the state law of the “home office” suddenly have found themselves having to comply with multiple jurisdictions. If any of the employees work in California, you might be violating the law too since many of their laws are unique in nature.
As the speakers noted in the written materials for the program:
Gone are the days where all employees of a company showed up to one central location, worked
from 9 to 5, and then went home. The COVID-19 pandemic accelerated the prevalence of
remote work when employees in industries that previously worked at a physical worksite were
required to work remotely. Although COVID-19 stay at home orders are behind us, remote work
is here to stay. Employers and employees alike realized that remote work is feasible and
productive. This has led to the “wandering workforce,” with large swarths of employees
working remotely, often nowhere near their employer’s worksite – and sometimes changing work
locations from week to week (or day to day). So, which laws govern?
The jurisdiction where an employee is actually performing work will most likely be the
jurisdiction whose employment laws apply to that employee. For an employee working
remotely, that is likely to be the state in which the employee resides (though this is not always
the case). This could differ from the employer’s location – and might impose very different wage
and hour obligations
This leads to challenges in minimum wage, overtime rules, wage notices and more.
One particular topic of the conversation was the tracking of breaks in the remote work environment. Employers noted that there has been an “arms race” of employers trying to track employees and employees trying to find ways to fool the trackers. Ultimately, while employers can impose such tracking, at some point it may not be as effective as employers hope that they will be. And employee morale could suffer as well.
At the very least, employers need to be aware of electronic monitoring laws that may exist. (Connecticut has one of them.)
Ultimately, the conclusion was one that I’ve preached before — if you’re going to allow employees to work from multiple jurisdictions (something you don’t HAVE to allow), then you as the employer need to understand the laws nearly everywhere. Don’t underestimate the work and the details involved.