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Attorney Zev Singer is a partner at Greenwald Doherty, LLP

Thousands of New Jersey employees have been working from their homes since COVID-19 closed many nonessential workplaces in March. But doing so without a written company-wide “remote work” policy means their employers may be putting the business at risk for potentially expensive litigation.

That was the warning delivered by attorney Zev Singer, a partner at Greenwald Doherty LLP, during an NJBIA webinar on Thursday that offered businesses tips for managing remote workforces without running afoul of wage and hour rules, discrimination laws and other employment-related statutes.

“It’s not just a good idea to have a remote workforce policy — it’s a must,” Singer said. “Especially now that there’s this level of permanence, and we are in this remote work for the long haul, it is really important to have something in writing.”

A comprehensive policy should address work hours, timekeeping, overtime, reimbursable expenses, disability accommodations, company equipment used at home, and how employees’ remote work will be managed and evaluated, he said. Be clear about when employees must be accessible and how they will be expected to communicate with supervisors, such as in a weekly Zoom meeting, he said.

Singer also recommends that businesses spell out that an employee’s workload is the same as if they were in the office, that the company’s anti-discrimination and anti-harassment policies remain in effect while interacting with colleagues remotely, and that the remote work arrangement can be revoked by the employer at any time. It’s also a good idea for employers to make sure that their worker’s compensation insurance covers employees when they are working outside of the office, he said.

Probably the biggest risks employers face are associated with improperly tracking and managing employees’ hours and violations of overtime rules, which apply even to some salaried employees.

“A lot of times I hear from clients who say, “What do you mean overtime? I pay someone a salary for all of their work.’  Unfortunately, it’s not that simple,” Singer said.

To be exempt from being paid overtime, an employee must be both salaried, and also have certain duties, Singer said. “Duties are the second part of the test. You can end up in a situation where many of your employees, without realizing it, should be getting overtime if they work more than 40 hours in a week,” he said.

Getting sued over an overtime issue can be expensive because employees who win are now entitled to triple damages in New Jersey, Singer said. This is why in the COVID-19 remote work environment, when people are not following a strict 9-to-5 work schedule, it is even more important to properly track employee hours.

“People are working from home, they’re not necessarily tracking their hours,” Singer said. “They’re taking a break there for dinner, they’re coming back and logging in at 11 p.m.  If you don’t keep records and you don’t track their time, you have a very tough uphill battle to disprove that someone didn’t work 16 hours a day, and they’re not entitled to overtime.”

Singer suggested companies clarify in writing what their overtime policies are for overtime-eligible employees doing remote work. Companies should also clearly state that off-the-clock work is prohibited. If they don’t, it may come back to haunt them in a lawsuit, he said.

Another confusing issue for employers in the new COVID-19 work environment is how to determine which state law to follow when an employer is in one state, but the employee is in another, Singer said.

While each case should be examined carefully in consultation with attorneys, accountants, and/or insurance professionals, generally, employers should look at the laws of the state where the employee is working remotely when it comes to matters concerning wages, sick time and taxes, Singer said. In compliance matters involving discrimination laws, the best course is to look at the laws in both the state where the company is and the state where the employee is working remotely, and then comply with the stricter one, he said.

Singer said working remotely will likely outlast the COVID-19 pandemic.

“This is the new reality and we have to adjust,” Singer said. “Hopefully, we get a vaccine soon… but people are giving up office spaces, people are changing the way they work, so this remote revolution is here to stay.”

To view the entire webinar and PowerPoint presentation, go here.

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