WAGE & HOUR

To minimize the risk of wage & hour claims in 2022, California employers should carefully review their payroll, timekeeping, and meal and break policies and practices, and consider the following best practices:

• Pay meal and rest premiums regularly and as soon as you realize they are warranted.
• Provide at least 35-minute meal breaks because any non-compliant meal periods will raise a presumption against the employer that they violated the Labor Code.
• Shift start and end time punches can technically be rounded, but punches for lunches cannot.
• Require nonexempt workers to review and affirm the accuracy of their payroll records, in writing, before submitting them to payroll.
• Immediately correct payroll errors.
• Ensure that overtime and premium pay is paid at the correct regular rate of pay, including nondiscretionary bonuses and commissions.
• Clearly distinguish between discretionary and nondiscretionary bonuses.
• Review independent contractor agreements and invoices for accuracy.
• Do not credit employees’ tips against minimum wage.
• Track and record all gratuities received.

REMOTE WORKING

If your organization will continue to offer remote working arrangements post-COVID, including hybrid remote arrangements, there are several best practices, depending upon whether you are mandating remote work or voluntarily permitting a worker to work remotely for the convenience of the employee. Remote work implicates leaves of absence, sick leave, workers compensation, confidentiality, expense reimbursements and trade secrets, among other issues. Whether an employee is fully remote or in a hybrid office setting, the laws apply evenly.

Every employer offering remote working arrangements should implement remote work-specific policies, policy acknowledgements and/or remote work agreements. Train your workforce, including managers and supervisors, on your remote work policies and arrangements, including how those policies are the same as or different from your organization’s non-remote work protocols.

Article: Remote Work Agreements

Require workers who will continue to work remotely to sign a written Remote Work Agreement detailing the particulars, including:

• Statement that remote work is not an entitlement (UNLESS stay at home orders are reinstated, and/or the remote working arrangement is granted as a reasonable accommodation).
• Hours to be worked, including set times or time ranges for meal periods and rest breaks.
• Specify remote work location and require worker to inform the company when the employee is going to be working at a different location for more than a minimal amount of time.
• Strict prohibition against off-the-clock work, including possibility of termination for violation.
• Non-exempt employees must comply with meal/rest break and timekeeping policies, including time off requests.
• Company’s Employee Handbook rules and policies remain in effect.
• Worker is responsible for security of any company owned property assigned to the worker.
• Confidentiality provision.
• Specify whether the remote worker is required to report to the primary worksite and under what conditions (e.g., as long as doing so is safe, and the company complies with all mandated safety precautions).
• Statement that if remote worker voluntarily moves away from their main work location, the company reserves the right to unilaterally adjust their compensation package to reflect cost of living adjustment (provided they are employed at-will).

Article: Reimbursement of Expenses (Labor Code § 2802)

If your business is mandating remote work, your employees are most likely entitled to reimbursement for the reasonable and necessary expenses incurred because they are being required to work remote. This may include at least a portion of the expenses associated with:

• Business use of a personal cell phone or landline plan – or provide your remote workers a VOIP phone.
• Internet plan.
• Personal computer or tablet.
• Teleconferencing software and hardware.
• Printers.
• Supplies (paper, toner, mailing supplies).
• Business use of a personal vehicle (to drop off or pick up mail, trips to copy shop, etc.).

Employers are likely not required to provide optional home office enhancements, such as higher-speed internet, larger or multiple computer monitors, or special ergonomic devices – all of which are for the convenience of the employee.

NOTE: Reimbursement must be a separate line item on the pay stub. California employers should 1) determine what they consider to be a “reasonable” amount and 2) present this to their remote employees as a monthly reimbursement. If there is a question as to the reasonableness of the amount, have the employee present their breakdown of expenses and what they deem to be “reasonable”.

Article: Wage & Hour Considerations re Remote Workers

How can an employer ensure compliance with wage and hour laws when a worker is not physically in the office? If a remote worker is classified as non-exempt, the worker must continue to comply with the wage and hour rules as if they were working on-site. This includes:

• Maintaining a timecard.
• Taking regulated rest breaks and meal breaks.
• Receiving overtime pay for hours worked in excess of 8 hours per day/40 hours per week.

Potential Pain Point: Effect of remote worksite on income tax withholding. Must track local requirements and must keep track of your remote workers’ physical work locations and the times spent in all work locations.

Potential Pain Point: Remote worker who works somewhere other than California (or the city where the employer is located, if there are city-specific employment laws that apply to the employment). General rule: Laws of employee’s residence will control.

Article: Workers Compensation and Workplace Safety Issues

A remote worker has the same rights to file a claim for WC benefits if they’re injured in the course and scope of their remote work. Consult with your workers compensation insurer or your employment counsel for your obligations to maintain coverage on the remote worker.

Employers are responsible for ensuring that the employee’s worksite is safe, but how can an employer ensure that proper safety measures are being taken by an employee working from home? Work with your risk department or legal counsel to implement safety policies that require the employee to designate a specific workstation at home and provide safety protocols and requirements that apply to that space. An employer can inspect the workspace, and even require an employee to provide photos or videos of their workspace.

Article: Leave of Absence Issues

If a worker is performing services in a location that provides more generous leave entitlement, then similarly situated remote workers may be entitled to different local leave benefits based on that location. However, under the federal Family Medical Leave Act, an employee’s residence (and most likely remote work location) is NOT a worksite. Rather, the worksite is the office to which the employee reports and from which assignments are made.

Article: Protecting Confidential and Proprietary Information in a Remote Work Environment

Implement a telework or remote work policy that outlines expectations for protecting confidential and proprietary information which contains a list of what the employer deems confidential information, and which includes standard instructions, such as:

• Working in a private area within the home where third parties cannot view the work.
• Requirement to use employer-provided or expense-reimbursed screen privacy protectors that shield the view of the screen unless directly in front of it.
• Locking the workstation when not in use.
• Requiring passwords on all electronic devices used in the course of their remote work.
• Implementing a VPN log-in.
• Consistently updating computer software.
• Providing shredders to remote workers.
• Having remote workers sign confidential and proprietary non-disclosure agreements.