FLEXIBLE WORKSPACE MEETS INFLEXIBLE LAW

Computers, Wi-Fi, smartphones, Skype, and computer-based meetings all allow an employee to contribute fully while working outside of the traditional office.  These technological advances have also meant that employees can perform their work from home, while on vacation, and while traveling on business.  Many employees have embraced flexible work arrangements, and they have modified their work schedules to meet the demands of their lives outside of work.  For example, an employee can take care of family or personal obligations during the day and perform work in the evenings or early morning hours.

Labor and employment laws, however, have not necessarily kept pace with the evolving workplace.  Wage/hour laws, workers’ compensation issues, and family and medical leave requirements can all get in the way of the “workplace without walls.”  For example, under California law, an employee who is not exempt from state overtime requirements must be paid time and a half for all hours worked over 8 in one day or 40 in a week, and double time for hours worked over 12 in one day.  These laws are not suspended just because an employee is working remotely from home.  This means that an employee who decides to log extra hours working at home one week in order to be able to work less the next may be entitled to significant amounts of overtime pay.  Furthermore, California law requires that non-exempt employees clock in and out at the beginning and ending of work shifts.  If the employer does not have a system in place that provides for this detailed record-keeping while the employee works remotely, the employer could face another potential Labor Code violation.  Add to this the need to provide employee meal and rest breaks at intervals prescribed by the California Labor Code, and the flexible work-at-home model can become very complicated to manage.

How about liability for work-related injuries?  Let’s say an employee has been set up with a computer to work at home.  The employee takes a break, gets up and goes into the kitchen and cuts himself while making a sandwich.  Is this a work-related injury compensable under workers’ compensation insurance?  It depends – an argument could be made that it is.  What about unsafe conditions in the employee’s home – who is responsible if the employee is injured due to a fall from a faulty staircase or a slippery swimming pool deck while the employee is working from home? These situations highlight the need to set up guidelines for employees working at home – such as where work is to be performed and what constitutes the “office” at home.  These guidelines should be documented in a written agreement, signed by the employee and the employer, to clearly set forth the boundaries of the at-home work situation.

There are additional worries when the employee is on an unpaid leave of absence.  For example, well-intentioned employees may want to perform some work (e.g., keeping up with emails, attending staff meetings via telephone or computer) while on unpaid leave taken under the Family Medical Leave Act/California Family Rights Act (FMLA/CFRA).  But allowing this participation could be problematic.  In addition to the wage/hour obligation to pay the employee for time spent doing these work tasks, the employer must also keep track of time worked and reduce the amount of FMLA/CFRA leave taken by the number of hours worked.  Even more troublesome, allowing an employee to work while on family or medical leave could constitute interference by the employer with the employee’s right to use FMLA/CRFA leave.  Unfortunately, this is one of those situations that probably does not make sense from anyone’s perspective – because a conscientious employee may genuinely want to “keep up” while on medical leave and doing so potentially benefits both the employee and the employer.  Nevertheless, FMLA and CRFRA impose such stiff penalties for employer interference with an employee’s right to take family or medical leave that most employers feel they simply cannot take the risk of allowing an employee to perform any work while on FMLA/CFRA leave.

Despite all of these potential legal pitfalls, flexible work arrangements are becoming the new normal in many work environments.  These alternative work arrangements can be a benefit to both the employer and the employee – but both must understand and abide by the employment laws that govern the workplace in order to successfully navigate these alternative work situations.

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