ROI-NJ Thought Leaders: Human Resources/Labor Relations/Employment Law

Lisa Gingeleskie
Partner, Labor, Employment and Employee Benefits Group
Lindabury, McCormick, Estabrook & Cooper, P.C.

Give us one aspect of work-from-home that few businesses have thought of — or are ready to handle?

One of the biggest challenges facing employers of remote workers is understanding which state and local laws govern these employees. Allowing employees to work remotely potentially exposes employers to claims in foreign or out-of-state jurisdictions where the company’s employees are working. These potential claims may include alleged violations of hiring and background check requirements, wage and hour laws, leave rights, restrictive covenants and anti-discrimination protections — all of which vary from state to state. Often, businesses assume the laws governing their employees are the laws of the state in which the business is located, but that is not necessarily true when dealing with remote workers. Therefore, it is critical that employers undertake a careful analysis of which employment laws apply to their remote employees, and update their employee handbooks and corresponding policies to reflect these requirements. 

What steps can an employer take if it feels its clients are working for others from home — while still on the clock?

Monitoring remote employees’ activities to ensure that they are not abusing their telecommuting arrangement can be a challenging task. To ensure that accurate records are kept of the hours actually worked, employers should have a policy in place requiring all nonexempt employees to record all time worked using the employer’s preferred method of timekeeping. This approach will help to limit employees from engaging in unauthorized work during their remote working hours, and make fraudulent timekeeping practices subject to discipline. Employers should also have in place a policy that allows employers to monitor both exempt and nonexempt employees’ use of employer electronic communications systems, including review of employee emails, monitoring of internet usage and possibly implementing task-monitoring software onto these devices. The policy should make clear that all information sent, received, gathered or stored on the company’s devices belong to the company, including all communications on the employee’s personal, password-protected email account, in the event these messages are sent and/or received on the company’s communication devices. A policy such as this will inform employees that any information accessed by them through company business systems may, within the permissible parameters of the law, be subject to monitoring by the company and they should have no expectation of privacy in these materials. In the event these monitoring steps reveal that an employee is conducting personal business or working for others from home during working hours, the policy should further state that the employee may be subject to discipline up to and including termination of employment. 

Every employee wants ‘flexible’ hours — what is the best way to define that term/those rules that works for both the employee and the employer?

Having a remote work policy in place is the first step in communicating and managing employer/employee expectations of that working relationship. What constitutes ‘flexible’ hours is going to be unique to each individual business and its own operating needs. It may include a flexible daily schedule (where an employee starts or ends their working day earlier or later than the typical 9 a.m. to 5 p.m. workday), a compressed workweek (where an employee’s workweek is reduced, but their daily working hours are longer), a hybrid schedule (where an employee performs work both in-office and remotely) or job-sharing (where two or more employees share a position to allow for greater flexibility). Whatever method is chosen, it is critical that the arrangement and what constitutes ‘working’ or ‘flexible’ hours is discussed with the employee and specifically defined in the agreement. Often employers will incorporate a ‘trial period’ into a remote work agreement to allow the employer and employee to review the arrangement after a certain period of time to determine whether it is productive and worth continuing on a more permanent basis. 

What is the biggest issue facing HR/labor relations/employment moving forward — and how are you advising your clients on it?

Artificial intelligence. Modern workplaces are increasingly receptive to and reliant on tools powered by AI to perform certain human resources and employee management functions. With the rush to embrace the efficiencies of AI to assist with HR decisions, many employers fail to consider the legal implications of employing these tools, including the potential for discrimination in screening, hiring and other employment decisions, as well as compliance risks when conducting employment terminations and layoffs. The EEOC recently placed employers on notice that they cannot blindly select AI vendors without taking steps to validate that these tools do not have a discriminatory impact. Therefore, we recommend that employers consult with legal counsel before utilizing this technology and adopt effective oversight protocols, including the designation of a qualified chief AI officer with the skill set to understand these emergent technologies and conduct ongoing adverse impact analyses of any selection programs.

Give us one more thought on a topic of your choice.

Given the ever-changing legal landscape in New Jersey, employers can take certain steps to manage uncertainty. Making sure that employee handbooks and policies are up-to-date and reflect current practices, and that managers and supervisors are trained on how to implement these policies consistently, is one way to maintain stability and avoid liability in the workplace. Regular communication with employees as to these policies, as well as performance expectations, and the frequency and measurement of those expectations help employees to feel connected and accountable, especially when they are operating in a remote work environment.