As the first coronavirus vaccinations begin, businesses and workers are considering what their work setups may look like when the need for widespread telework fades.
Some workers who temporarily relocated during the pandemic may want to continue their new arrangement long term. Some companies may want to cut real estate costs by reducing office space.
A recent Pew survey showed that just over half, or 54%, of employed adults who say their job can be done remotely would want to work from home all or most of the time when the pandemic subsides, while another third said they'd like to telework some of the time. Among respondents who never or rarely teleworked before the pandemic, just under half, or 46%, said they want to continue doing it all or most of the time.
But widespread telework carries downsides. In the same survey, people who are in the same job they had before the pandemic and now work remotely are more likely than those who elect to go into the workplace to report feeling disconnected from co-workers, the survey showed.
Here, Law360 examines current and future issues with remote work arrangements and how to address them.
Mind How You Pay People Who Move
The proliferation of remote work in some industries has allowed employees to relocate — even temporarily — to areas that might have been off-limits before the COVID-19 pandemic. What happens if they decide to stay?
One thing to consider is the difference between the cost of living in the employee's new location and the region where the employer's office is located.
An employer that wants to reduce the pay of someone who moves to a community with a lower cost of living should be willing to increase the pay of a worker who relocates to a more expensive area, said Jonathan Segal, a partner at
Duane Morris LLP who is managing principal of its training program for human resource professionals.
"Symmetry is something that to me is relevant of fundamental fairness," Segal said.
He compared it to wage and hour suits in which courts have condoned rounding employees' punch in and out times as long as the policy allows rounding in the worker's favor as well as the employer's.
"In terms of equity — not necessarily as mandated by law but as mandated by treating people fairly — doing it from one side would seem to me to be a bit problematic," Segal said.
Fairness matters, but that doesn't mean every pay reduction is unfair, Segal said. It would be OK for a company to adjust the pay of an employee who relocates if the company has already noted geographic area as a consideration in its compensation scale, he said.
"It doesn't to me seem unfair to say that our pay structure is based on where you live or the office to which you report" and reduce someone's pay if they move from a high-cost area to a less expensive one, Segal said.
"It would strike me as unfair if where someone works was not a factor until now," he said.
Check State Laws
Paul DeCamp, who advises employers as co-chair of the wage and hour practice group at
Epstein Becker & Green PC, said geographic area should be a consideration in pay decisions.
"As a matter of good compensation practice, we normally think of it as appropriate and an ordinary part of setting employee pay to factor in the cost of living where the employee's going to be living and working," DeCamp told Law360.
One wage and hour factor employment lawyers should consider is that the new state could have different criteria for determining whether workers are exempt from its minimum wage and overtime requirements, DeCamp said.
"There are some roles that are properly exempt under federal [law] that are categorically not exempt in California," he said, as an example.
Different states could have similar exemptions that apply depending on a compensation threshold that varies from one jurisdiction to another, he added.
The threshold question of which state's laws apply can be tough to answer for employees who spend at least some of their time working remotely in multiple locations, DeCamp said. But employers that anticipate having someone in another state for more than a few weeks should review laws of the area where the employee wants to work, DeCamp said.
"You at least have to start thinking about the question and thinking about, does the law of this other state apply?" DeCamp said.
Evaluate if Remote Work is a Reasonable Accommodation
Another way different state laws matter is if an employee with a medical condition asks to work from home as an accommodation, DeCamp said. If the employee's home is in another state, that jurisdiction's law could factor into the employer's analysis of how to reasonably accommodate the worker, he said.
The Americans with Disabilities Act requires employers to provide a reasonable accommodation to enable a worker with a disability to do their job, but it doesn't require an employer to take on an undue hardship.
Whether having to comply with a new set of state requirements is a hardship may depend on the specific circumstances, DeCamp said. A company that has only had employees in one state might find that it's a big burden to begin complying with the laws of a second state, while a company that minds the requirements of 35 states may not find it substantially harder to follow one more, he said.
On the other hand, an employer that finds that there is something especially difficult about operating in one particular state has a stronger case that accommodating an employee's request to work remotely there would create an undue hardship, DeCamp said.
"There could be unique hurdles presented by a handful of jurisdictions that are particularly challenging from the legal standpoint," DeCamp said.
"Jurisdictions that are regarded as being relatively open to business don't seem to present the same kinds of undue burden that having to comply with a state with a much more aggressive set of regulatory standards would be," he added.
Think Beyond What's Legal
Managers are right to ask whether a change is lawful, but it's a mistake to think new policies are OK simply because they don't expose the company to legal claims, according to Segal.
"One question always should be the employee relation," Segal said. "I like to put that first — ahead of the law, even though I'm a lawyer — because even if you can [make a change], what are the consequences going to be if you do?"
"Employers sometimes separate the legal issues and the fairness issue, and in my mind they're inextricably intertwined," Segal said. "Fairness always matters."
The impact of the recession and the scarcity of jobs also makes a difference because it's harder for unhappy employees to leave and find a job elsewhere, Segal said. That could come back to bite an employer, he said.
"If you don't treat them well, you'll pay a price as a company in terms of employee morale," Segal said. "That has impacts on productivity."
--Editing by Haylee Pearl.
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