Coffee Talk: The Law and Remote Workers: What Companies Need to Know

Good morning, and thank you for joining Ramone's Coffee Talk today. I'm Christine Whitnaben, Senior Human Capital Business Advisor at Ramone, and today we're fortunate to have with us two Ramone partners of our Employment Law Group. Those are Christopher Kelly and Tara Hummer, along with Rita DeStefano, Human Capital Business Advisor at Ramone. Christopher, Tara, and Rita will guide us through all that is needed to know about remote work and how it has transformed the way our organizations operate today. We welcome your questions, which can be submitted through our Q&A portal. We will discuss your questions at the end of this presentation. Should we not be able to get through all the questions, we will respond to them via email after today's presentation. Before I dive into the program, I want to go over a few, um, A few things, just that this coffee talk today does not constitute legal advice, nor does it establish an attorney-client relationship. Past incomes do not guarantee future results. With all that said, let's jump right into our subject matter. Rita, how do organizations today create engagement in a remote world?

Good morning, Christina. Good morning to all my friends and colleagues out there. Well, about 4 years ago, COVID threw us into a complete spin, and business will never ever be the same again. And this remote versus on-site hybrid, all of those words surfaced. And, and, and we need to say that businesses had to acquiesce and to adjust and accommodate all of the things that came out of the COVID situation. What is the problem here? Well, the problem is in many companies is that remote is here to stay. It isn't going away. Hybrids are not going away. But what are companies to do about all this? There are so many, many things that have come into play that could make it dangerous for a company if they don't have their ducks in a row and their act together. So the question is, what do companies have to do to keep their employees connected? How do you, how do you keep the remote communication community connected to the company that they are not going into the office all every day, and maybe some of them not at all. So just don't, don't forget that it's not very different than when everyone came into the office. And I think that people and companies are forgetting that a lot of what they have to do is to please your employees. And there's no doubt that you need to understand their requirements. But in the end, the company is in control of the requirements. So what do you do to keep them engaged is Remember that it's, it's, it's important to have a connection with your employees. And if you're hiring new employees now, which I'm sure many of you have done in the last 4 years that are remote and will be remote for, for the duration, you need to have them understand what the, what your situation is and what your requirement is. And that starts with onboarding. Take a look at your onboarding process. Make sure that when you're onboarding, you let your new employee know, and old employees, who their manager is. Who they're to report to, what questions should they be asking to the right person. Don't leave them out there not knowing. That's engagement. That's engagement to get them to understand that there is somebody at the other end of it. And you need to also, it's a new world, train your managers. Let your managers understand what is to be expected of these employees so that they have communication. That daily communication is critical. If you can't do daily, try a weekly meeting. Let them understand that they are as important as any other employee. Set up goals and objectives. Let them know what you require, what you expect. Otherwise, they'll go out there and just do whatever they wish, what they think, not even what they wish, what they think you want. So, you really need to make it clear. And they, they need to be understood about what their needs are, because it really does go both ways. And give them some timelines. That's how you engage managers and supervisors and CEOs, 'cause I know we have many, many different types of companies out there right now from very small to very large. This applies to everybody. And departmental meetings are critical, Christine, that they get to know that their manager is there and that if they have a question, they can get it answered. So many times I'm hearing outside of the office, I don't know who to get in touch with. I'm having a computer problem. I'm not understanding. So engagement, The other word for engagement is communication. Don't forget that they're there. And the other thing that I'm learning now, if you don't continue to engage these people, surveys are starting to come out as a result of this 4-year hybrid remote work, is that if your employee out there does not feel engaged, you're going to have a retention problem. And that people will not stay because they don't feel valued. So retention is another problem that's starting to rise right now if you don't put into place some of the things things I've just discussed.

Well, thank you, Rita. Engagement is certainly a positive thing that we can all improve upon as we see our remote world evolve. But one of the issues that we want to bring up is legal issues. Tara, can you take a look at that for us and explain what we can do about the legal issues that may arise through this engagement process?

Sure. Hi, everyone. So I want to talk a little bit about engagement with remote employees. From kind of a risk mitigation perspective. So engagement is especially true, especially important when it comes to managing an employee's performance, especially with regard to remote employees. Employers should be making sure that employees who are remote have the tools that they need to succeed in completing their tasks, completing their duties, engage with those individuals who are remote on a regular basis to provide feedback and potentially training if that is necessary, kind of in the same way that you would do with a person working in person. You know, you meet with them every so often to say, hey, you're doing this great, hey, this can use some improvement. And then of course, kind of the more structured performance feedback by way of, you know, semiannual reviews or annual reviews or quarterly reviews, however your company does it, that should also apply to these remote individuals. And I say that because sometimes we have employer clients come to us and say, hey, you know, we want to terminate this individual for poor performance. And the first question we ask is, okay, well, you know, what documentation do you have of that? Have you spoken with them? Have you issued them a performance improvement plan? Have you given them some tools to try to improve over time? Do you have emails? Has the manager had conversations? Are they documented? And sometimes employers say, you know, no, I don't have any of that stuff. And that kind of becomes an issue if an employee makes a claim later that they were terminated for an unlawful reason. Even if, you know, those allegations are not true, it becomes harder to show that the employee was actually terminated for the poor performance. When we don't have a lot of documentation of that. So from a risk mitigation perspective, engagement is very important. And so employers should try to engage with individuals, manage their performance the same way that they would in-person employees, people working in the office, and just make sure that you're meeting with people and providing them the tools and then also talking with them about issues that they're having.

Thank you, Tara. And to build on that, when we speak about documentation, as you just reflected on, I think about developing policies. So Rita, can you bring us through about policy development and remote work?

Yes, absolutely. I'm going to pigtail on Tara's wonderful remarks. I mean, one thing from human resources, if my clients ever listen to me, is document, document, document. And the other thing that I don't really believe a lot of employers are remembering is that you do have a handbook, and if you don't, you should. That handbook still speaks volumes. There are disciplinary actions in there. There are personal information in there that, that your employees, again, on, on day of hire or whatever, it's the Bible of, of the company, and all of the above applies. If you're having a performance issue and a tardiness issue, an absentee issue, the documentation for all of that is critical, as Tara mentioned, if you want to take any other further actions to keep you legal and, and, and in line with what you should be doing in order to keep a very healthy workforce. So, in developing a remote policy, it should be very clear what you want from your employee. And it doesn't need to be— a policy doesn't really need to be a one-size-fits-all. If you have departments that need to be there on a full-time basis and other departments that don't, that's okay. It's a requirement of the company. And I think what's really getting some of my clients really a little scattered is they're trying to please everyone. Everyone does have, if you have 50 employees, they're going to have 50 different situations, and you're not going to be able to satisfy all of them. You're not ever going to be able to satisfy them even before COVID You have a handbook. You're hiring people for 3 days a week to work Monday, Wednesday, Friday, 9:00 to 5:00. That's what they, and then they'll come in and say, "Well, I can't do the 9:00." But you were hired for 9:00 to 5:00. Just remember that when you're setting the policy, You need to define the schedule for at least individual departments that require what your goals and objectives are. And once they have that, you'll find that you'll have a much happier, um, workplace if people know from the beginning just exactly what you expect. And it's not going to always be the same in every department. It's a requirement. You need to get your product out the door, so therefore your requirements count first. Um, And I think my colleagues will go into the exempt and non-exempt issue with regard to setting policy and rates and, and what is expected with regard to hourly and professional pay scales. That's also very important. I mentioned that you need to train your managers. I think that what's very important with developing a remote policy is once you develop that policy, with hours and time frames and, and what's expected. Your managers need to stay on the people that are working for them and keep them in line. And that would go with making exactly what Tara said. If you're having a problem, making sure that the policy is being followed, and if not, you need to document performance, give them a performance improvement plan. It's no different than when you're having an employee work on site. It is definitely critical to keep your handbooks up to date and have a remote policy. And we are working with so many clients now to develop that policy. Put it in the book. It will safeguard your future with this now here to stay remote and not remote workforce.

Thank you. Thank you very much. I want to delve a little deeper with Tara on the policy development, and we want to take a look at the eligibility factors. Can you expand on that, Tara?

Sure. So a lot of clients that we work with that develop and draft remote work policies and that we develop and draft remote work policies for will have certain eligibility factors for their remote workers. And so it's a little bit different if it's a fully remote workforce where everyone is basically eligible and working remotely. The parameters are a little bit different. But for a workforce where, you know, they're kind of moving towards more remote work or permitting individuals to work remotely, some employees want to limit that by the position or employers Employers limit that by the position the employee is working in. So obviously, like Rita said, if you have a factory line or something where someone needs to be in doing manual labor, those individuals can't work remotely. So maybe the employer limits it to certain administrative positions or certain departments. Certain years of experience or years of service is another factor that some employers bake into their policy. Maybe individuals for the first year of service to be working in person so that they can have eyes on them. And then afterwards, you can apply to work remotely. Scheduling and day and days of the week. Some employers will say, you know, we want to implement a hybrid schedule, but we want you to specifically tell us which days of the week, which 3 days of the week you're going to be working in person and which 2 days you're going to be working remotely. And then also setting hours of work for those days as well. Kind of so everyone knows what the parameters of the arrangement are and then, and can then act accordingly. We put frequently requirements for home workspaces in our remote work policies, you know, making sure that employees understand that they have to be in a space that's free from hazards, a space that is, you know, quiet and where they are able to complete the work that they need to complete without distractions. We've talked about putting in provisions that explain that, look, you're working remotely, but that doesn't mean that you can be doing all of these other things at home, like your chores or taking care of your kids or your relatives. You should be— during work hours, you should be focusing on your work, not all of these other things. And then performance criteria. So a lot of employers will want to kind of base the ability to work from home on the individual's performance. So if an individual is not performing, they like to be able to say, well, if you— if your last evaluation resulted in a does not meet expectations score, then, you know, you're not going to be permitted to work remotely anymore. You're going to have to come into the office. So we see a range of those things and additional eligibility factors as well in these policies. One caveat that I wanted to mention was with regard to reasonable accommodations, disability accommodations under the Americans with Disabilities Act, as well as similar state laws, where employers will get a request from an employee that says, "Hey, I have this disability, and the accommodation that I'm requesting for that is to work remotely." And that kind of brings us outside of some of these policies, because as we all— most of us know, employers may need to kind of flex certain requirements and certain policies in order to make reasonable accommodations under those laws. So what we suggest is that, you know, if employers do get those types of requests for reasonable accommodations for disabilities, that they consider that on a case-by-case basis. And potentially employers may need to flex certain of the requirements in their policies. I do sometimes put that specifically in remote work policies, something along the lines— that's something along the lines of ADA or disability accommodations, reasonable accommodations requests will be considered separate and apart from these factors in this policy, or language to that effect. So that's something that employers should keep in mind too.

Thank you, Tara. As we continue on through this policy development, Chris, I want to talk about the wage and hour laws that we have to be mindful of when creating these policies. Can you go through some of that with us today?

Sure. And this is especially important for your non-exempt employees, people being paid on an hourly basis. One of the factors you need to consider when you're developing your remote work policy is how are you going to track these employees' hours when they're working? How are you going to ensure that they are actually working, as Tara was speaking about? You know, there's not going to be a time clock in someone in the employee's house that they can punch in and out of. So there's a lot of different solutions that employers have used for this sort of thing. Some base it on when an employee logs in to the computer system in the morning. Others require, you know, certifications. You sign forms the way we used to, you know, on paper, saying that they, you know, testing that they work certain hours. And there's sort of benefits and drawbacks to a lot of these. You know, one problem is if an employee can't log in first thing in the morning, they're having IT issues, how do you know about that? You know, in an office, it's easy. You see them and they're not able to log in, and you can tell that they're there but not able to log in, and that that's all compensable time that you need to pay them for. Whereas if they're at home, you may not be aware of it. You may think they're late. And so these are things that need to go into your policy, that you're advising your employees about this, telling them who they should call to address these issues. And if they can't, here's who you notify about the time you were working when you showed up and were ready and available for work, but we're having IT issues so that those employees can be properly paid. Another thing you need to consider, and this is a theme we're going to be going back to a lot today, is employees who are working remotely in other jurisdictions, whether that be another city within your state or another state. This comes up frequently, you know, with like New York City employers who have employees working remotely in New Jersey or Connecticut or where have you, or even now post-pandemic, you have people working in Montana or Ohio. And I think a lot of employers are not aware of the issues that can come up here. Because they say, well, we've always had employees in New Jersey or, you know, Connecticut. And the difference is, when they're at your office in New York City, New York State and New York City laws will apply to those workers' work. Whereas if they're working remotely at their homes, there's a significant likelihood that the other state's law will apply. Or even if you're in New York State but outside New York City, there could be different rules. You know, some of New York City's laws New York City's laws will not apply, and other counties and cities may have their own rules. I think most employers know that California has an extraordinarily onerous wage and hour system that most employers don't want to get involved in unless they have to. And so, you know, you need to think about this. If an employee is asking to work remotely in another state, you need to consider that. Am I going to allow them to work there? What are the requirements that are going to be imposed upon me by that? Will this employee be exempt under the other state's law? So maybe you're in the state where your company operates and you've determined that this employee is exempt, you're paying them on a salary basis, and but under the other state's law, they're not qualified to be exempt. That may significantly increase your payroll costs. You also need to look to see what qualifies for overtime under the other state's law. You know, federally, it's over 40 hours in a week, pretty straightforward test. Some states follow that. Some states, like California, for example, have other rules, and they make you pay additional overtime for anyone who works over 8 hours in a day. They also— California has a specific definition of workweek. You have to be consistent each week, and so you might have to define a workweek for your employees. There's a lot of just little things that go into this that you might not be thinking about. Meal and rest breaks as well. You know, many states don't have meal and rest break requirements for adult employees, But some states do. And the expense, the cost of failing to comply with these rules can be significant. There are lots of penalties. You can wind up paying interest to these employees. If they sue, you can wind up paying their attorney's fees. And another factor that comes into consideration is whether you have to reimburse expenses. Some states require that you reimburse an employee's expenses, including potentially their home internet, their cell phone usage, all of those sorts of things when they work at home. So again, these are all just factors. None of these are insurmountable problems, but they're factors that you need to be thinking about proactively and putting into your policy and communicating effectively to your employees. And again, all of this goes into retention, as Rita spoke about, that if your employees are not going to be happy if they feel like they're bumping into invisible walls here, They want to know what's going on. So if you're communicating upfront with them and telling them what's going on, they at least know what they have to comply with.

And another wage-type issue that I just wanted to mention is with regard to employees working on a commission basis. If you have individuals, you know, salespeople, for instance, who are working remotely and working on a commission basis, there are very— there are differing requirements state by state and jurisdiction by jurisdiction with regard to how employers have to implement those commission structures. For instance, New York requires that the commission agreements be in writing, that the employer keep those and retain those agreements for 3 years. Those agreements must contain, you know, a description of the wages, commissions, and also explain when those commissions are earned. If the agreement— if an agreement in that situation doesn't include when the commissions are earned, it will be considered earned when the commissioned salesperson produces a quote, "person ready, willing, and able to enter into a contract upon the employer's terms." And that is important because the state law determining when a commission is earned basically says when the employer needs to pay that commission. And this impacts kind of for these salespeople, if someone is terminated, for instance, the employer may still be obligated to pay commissions that are, quote, earned under the specific state laws. So it may also impact whether employers can call back certain commission payments. And so there are a lot of state laws that need to be considered with regard to commissioned salespeople and commissioned employees who are paid on commissions, and that can kind of vary widely from state to state. So if you're an employer that has those types of employees on that type of pay arrangement, you really need to make sure that you're complying with those state laws as well.

Our policy certainly is getting very long, but these are certain factors that need to be in our policy development. And I just want to touch back on the safe home work environment. Tara, you mentioned this earlier, but Chris, what insight do you have for us for workers' compensation and how we need to build that into our policy? As well, those policies.

Yeah, this is a potential trap for unwary employers that, you know, as we noted earlier, you need to put in your policy, you know, some requirements for what they would need, the employees would need to do in terms of keeping their workplace safe at home, because many states will consider an injury that occurs in an employee's home office while they're working at home to be a workers' compensation compensable injury. So if you trip over your cat while you're going to get something from the printer at home, that could be a compensable injury. And I think most employers just aren't even aware of that. And, and it does pose a logistical problem. It's easy to recite that rule from a legal perspective. It's, it's much harder to enforce that when you're in an office and you can see their workplace. You can make sure that everything is safe. You're, you know, whether you own the building you're working in or have a landlord, you can very clearly see, you know, you have control over the workplace environment. At home, all you can really do is instruct these employees to make sure their workplace is safe and give them some realistic rules to comply with, the same sort of factors that you would consider as an employer in your office. But just communicate that again effectively to them and, you know, do your best to ensure compliance.

Thank you. So now we move into more of what fairness looks like and what we mean by equal and fair as we develop our policies we need to have this in the forefront of our minds. Rita, can you explain that for us?

Yeah, I'd be happy to. Again, in the mind of your employees, what's equal and fair could be very blurred, and equal and fair don't always mean the same thing. You may have— and again, I'm going back to the department where you are setting up a schedule that is pursuant to the needs of the company. And so you're dealing with schedules for people who want to work remote and at home that please the departmental requirements. It could be a Monday and a Tuesday, or a Thursday and a Friday, where, where they are maybe not as busy. And so they'll give some employees a remote assignment for that, and it works for X department. However, Y department needs to be in the office a little bit more, or maybe a little bit less, so they're assigned a schedule that's compliant with the needs of that department. That's fair, but it's not equal. It's not the same as every department, but it is set up for the needs of the company. And if you keep that consistent, that is fair. That is fair to each person, that is fair to the department, that is fair to getting the product out the door. So, so many times, you know, one department will say, well, you know, Joe gets off on Fridays, I want Fridays off. Well, your department needs you. That's when you're getting most of the product out the door. So, they may not see that as equal. So, there is a very, very big difference in equal and fair. But again, you need to have the policy in place for each department and company needs to train. And also, I need to tell you, I've had clients that there are medical issues that come up when you, when your employees are at home too, and they think that because they're at home, well, you know what, I'm home, but I can still work. I need to bring this up because if there is a medical issue, it has nothing to do with equal and fair, but it does in the long run. Always need to have medical documentation from your physician, from their physician, that tells you whether or not they're able to work from home. You don't want to get into a situation situation where you have them working and you're paying them, and the doctor put them out on total disability, it's a whole mess. So remember that your handbook and all of the way you followed disability, workers' comp, FMLA, PFL, that all still applies the same way as if they were in the office. And applying all of these rules just as you would as if they were on-site is equal and fair, and you need to stick to the handbook and make sure that And I know I'm sounding like a broken record, but a policy is a policy. And if you don't follow it, you will be seen as unequal and unfair.

Thank you, Rita. And certainly, certainly remote work is a positive development in today's working world. But Rita, what are we, what are we missing by not seeing everybody physically on a constant basis? And what can we do to make sure that that visibility is upheld in remote work?

Work?

Well, you know, you're talking to someone who was brought up in a very different climate, and I have young people in my family, uh, that don't have a problem with being remote completely. What are we missing? Um, I don't know if you're remote you will ever really understand that, and I totally understand that remote is critical in today's day and age with the moms and dads needing to work and kids needing to be sent to daycare, and that's as expensive as paying another rent. So really and truly, the hybrid for today's climate is, is critical. What we're missing is, and I can say that these Zooms are wonderful. I'm getting to know a lot of people in the Ramon world via these Zooms, and I'm not saying that's terrible, but the camaraderie in an office, and there are so many large companies now that are requiring people to come back to the office. Because they're starting to notice that that camaraderie is missing, that the connection is missing, that meeting the CEO or the CFO in the coffee room and getting a couple of pieces of information that will make your day go smoother without even expecting it. Those are the things that happen on remote, not to mention the relationships that you, you develop through the years. So it's really, really hard to say, Christine, that it's good or bad. It's up to the individual. Some personalities enjoy not getting involved, and some, some, some personalities need that connection. But I think you are missing the human touch. And I think there is a happy medium because, as I said, remote is here to stay. It isn't going away. We just need to put a happy medium in between, and the employer needs to concentrate on Communication. It's critical. Don't leave your remote employees out there without making them think that they're part of the team and that their ideas are as critical as if they were on site. Let them know that their voice makes a difference. If it's a daily meeting, if it's a weekly meeting or whatever, try to infiltrate that one-on-one that we get here in the office, which is very critical to many different other things. And I think that the results of remote work are going to rear its head in probably 5 to 10 years. We don't know right now what, what the good, the bad, but life changes. Everything changes. So a happy medium and communication and Zoom meetings and managers that are trained to keep communication going with their remote people is critical as being on site.

Thank you, Rita. I agree with your insights. Now we're rounding down to the last 15 minutes of our presentation, so we have a lot more to get through, but I'm going to have Chris bring us through and Tara bring us through some of the more technical issues surrounding remote work and what the unexpected legal issues an employer can face. So go ahead, Chris.

Yeah, so I think we touched on this a little before that, you know, one of the hazards here is that employers, when they allow an employee to work in other states, can be subject to multiple different states or jurisdictions' laws. One thing that people don't consider is most states, if you have a single employee there, will require you to register to do business there. So if you have a corporation or an LLC in New York and you start having an employee in New Jersey, you're going to have to register to do business there. And so that, that's something people don't even think about. That can subject you to potentially being held into court in those states under certain circumstances. And so you really need to consider that when you're allowing employees to work remotely. Another issue is payroll taxes. As I said before, like if you have an employee who's, you know, working in New York City for a New York City employer, even if they live in New Jersey or Connecticut, you generally, unless there's some interstate compact, would not have to withhold taxes from the other state. You would be paying into New York and then the employee would file on their to correct that when they file their taxes at the end of the year. However, if you start having an employee work in these remote jurisdictions, then you may be subject to payroll withholding obligations, other, you know, paying into things like, you know, temporary disability if the state offers it. All of these things are potentially, you know, things that can come up and they're very, very state-specific. When does the state consider the employee to be working within that state and subject to their payroll tax? To their disability tax laws. It's very complicated to figure these things out. And quite often employers just have rules of thumb. They make a business decision that we're going to treat employees as working in a certain state if they work more than this amount of time there. And these are things you need to think through and, you know, consider your level of risk, what you're willing to accept on that. Do you want to actually go through the analysis for every state where these employees are going to be working and figure out the answers? Do you want to come up with a rule of thumb that you're comfortable with, you know, when it comes to that? And so those are other things we need to consider.

Yeah, and the same type of consideration with regard to unemployment benefits, for instance. You know, as Chris said, there are different ways to determine whether an employer or employee must contribute or comply with unemployment requirements and contribution requirements. Similar to, you know, if an employee is working X amount of time in a particular state, you may be required to contribute for unemployment in that state as opposed to your place of operation, your physical place of operation. So employers need to keep in mind all of those different, different things and how they determine whether an employee will be covered by one state's law as opposed to another. Employers also need to think about things such as leave laws in different jurisdictions. So, and these vary widely from state to state. In some states, an employer may be covered by that state's paid leave laws if it has 1 employee in the state. In other states, an employer may only be covered if it has 10 or 20 employees in the state. So it's really state-specific. And when I talk about leave laws, I'm talking about for instance, paid and unpaid sick leave laws, paid and unpaid family leave laws. Some states have laws related to jury duty leave, bereavement leave, voting leave, some paid, some unpaid. And it's, it's very state-specific when you're talking about those leave laws, and employers just need to recognize that potentially if they have one remote individual in that state, they may have to provide those benefits to that individual working in that state. And actually not just the state, some localities, counties, municipalities have their own laws related to leaves and things like that that an employer may also subject themselves to by allowing a worker to work remotely in those jurisdictions. Chris mentioned some states have state temporary disability benefits or family leave pay benefits that could be applicable to employees if they're working in jurisdictions with those benefits. So making sure that the employer is contributing or withholding from an employee's paycheck to contribute for those benefits as well. Job posting publication requirements. So for instance, in Colorado, Colorado requires publication of compensation and benefits and job postings even if the employer only has one employee there. Issues with regard to separations from employment for employees. So different states have different notice requirements upon separation of employment for employees. Some states require employer— employers to fill out forms for employees upon separation from employment, employment with regard to unemployment insurance benefits. Separation agreements could become an issue. So if an employer wants to provide severance pay in exchange for a separation agreement and release with an employee, there could be different requirements depending on the state in which this remote employee sits. Different tests for independent contractors versus employees is a big one. So if you are a business that contracts with contractors for certain work, you want to make sure that your contractor relationships comply with the requirements under the specific state laws. This becomes an issue if, for instance, under State A's law, your individual is considered a contractor, but under State B's, you know, workers' compensation, unemployment, wage and hour law, the relationship would not meet the test for contractor and the individual would be considered an employee, then you open up a whole can of worms with regard to, you know, are you paying them minimum wage? Are you paying them overtime appropriately? Are you providing workers' compensation benefits when you have to? Are you contributing to unemployment where you're supposed to? And those tests for contractor versus an employee also differ a lot from state to state. Some states use a very stringent ABC test, and some states use a more employer-friendly test, and it can vary from law to law. So the workers' compensation test may be different from the wage and hour test or the unemployment, uh, test. This would also come into play if we're talking about health insurance and certain other benefits, and whether these individuals are contractors versus employees, whether they must be provided those benefits in the first, in the first place, and then also whether the state law requires, you know, continuation of those benefits or the offering of continuation of those benefits under state mini COBRA laws, for instance. So there's a ton of issues that arise with regard to the independent contractor company relationship when we're talking about bringing these contractors on in different jurisdictions. And so the businesses just want to make sure that they are making, making sure that the relationship is actually a contractor relationship as opposed to an employee relationship.

Thank you very much. We do have a few more minutes left. Chris, can you bring us through and help us wrap up some of the technical aspects we need to consider?

Sorry, I was muted there. Sure, there's two things I want to touch on here just as we close up. One is something people may not be even thinking about is break room posters that, you know, this is something that's again easy in an office place where you're, you know, have you put them up in the break room, all those posters that none of us want to deal with, but we have to. And how does that work in a remote workplace? You're obviously not going to require your employee to poster an entire wall of their kitchen with break room posters. But there, again, there are workarounds to these kinds of things. You know, you post them on your intranet, you email them out to employees, you make sure they're updated regularly, just as you would in the office. This is something that, you know, you need to be proactively marking off which employees have a list, who's in what jurisdiction, what break room posters do I need to update so that when you get updates that you will issue in the office, you know, to notify those employees. It can't be passive that you're just expecting them to look on the intranet. You're going to have to do something proactively to, you know, compensate for the fact that they're not in the office and not being able to get this stuff. And the last thing I really wanted to touch upon was something I see a lot because I work a lot with non-compete agreements and other restrictive covenant agreements. And, you know, I see a lot of litigation over this. I draft them as well. And if you have an employee moving from one state to another, that can make it a challenge to enforce these agreements because the requirements vary dramatically from state to state. So in basically every state, if you sign— have an employee sign a non-compete agreement at the time of hire, and well, I should say in any state that allows non-competes, they, you know, that would be sufficient consideration for the agreement. If they, however, sign that later on, maybe the company is acquired by a new entity, maybe you just decide a few years later you want to have non-competes, some states consider continuing employment to be sufficient consideration to support that non-compete. Other states don't. And so if you sign an agreement in one state, you know, the employee is living and working in the same state the employer operates in, and then the employee moves and is working remotely in another state, the agreement may not be enforceable when the employee comes to leave your employment. So these are factors you need to consider. California, for example, just passed a new statute. They have always been quite hostile to non-compete agreements, and they just passed a new statute saying that both California employers are not allowed to enforce non-competes with employees even in other states, regardless of where the employee lives, where they work, where the agreement was signed. They can't enforce non-competes with their employees. And additionally, if an employee leaves to come to California, so the employee, you know, employer is in Texas, the employee lives in Texas, works in Texas, and then the employee moves to California or doesn't even move but wants to seek remote work with a California employee, under California law that would be unenforceable. And the employer— employee can actually sue in California state court to get it declared— the agreement declared invalid, can recover their attorney's fees for that. And, you know, there's obviously some constitutional issues that arise into this, whether, you know, California is enforcing things in other states that could arise in certain situations. But it's something you want to have in the back of your mind. Do you even want to get into that? Do you want to be the company that's fighting this and paying for the litigation, even if you're successful in getting it overturned? Or do you just want to say up front, like, you know, we're not going to allow this sort of thing. We're not going to allow you to work remotely in another state.

Thank you, Chris. Thank you very much. I want to address some of the questions. We have some great questions and some great comments here. I want to address the first question I have here on our Q&A. One of it, I'll read it. It's, how do you change a policy for a current employee in terms of working conditions? There's an example. You have a current employee that's in an office 2 days a week. And now the business needs that employee to be in the office 3 days a week. Tara, Kris, Rita, who wants to take that question?

Sure. I mean, I think notwithstanding any strange circumstances, an employer can generally, you know, implement the requirements that it needs to run the business. So if at first you thought you would only need someone in the office 2 days a week, but then, you know, things have changed and you now need them in 3 days a week, Obviously, you'd likely want to give notice of that and give them time to kind of implement that change. But I think without any additional facts, an employer can certainly do that. Now, I will tell you from experience that sometimes when employers try to make those changes, an employee will then come and say, "Oh, well, I actually need to work from home because I have this disability or this medical condition." this condition. And so then you kind of may need to get into different considerations with regard to a reasonable accommodation process and those types of things. But generally speaking, if the business needs the employee to be in the office 3 days per week and there's nothing else kind of in the mix, an employer can certainly make those changes.

Right.

Yeah.

It's all key on communication and giving that time for the employee to adjust to it. Important factors. Thank you. Rita, did you want to add something?

Yeah, I just wanted— I totally agree with Tara. It would be no different, because I like to make the analogy of if this was going on in the office. And how many times does a client tell me, Rita, I don't need this employee full-time anymore. I need them part-time. Well, to Tara's point, if it's the need of the employer and the requirements are legitimate and it can be proven that this 2 to 3 days is the 3 days is much more prevalent, much more required by the company. It's no different than taking a full-time employee and making them part-time and following that process the same way of showing the needs of the company. And if that employee— I mean, I really hate to say this, but if that employee can't comply with the requirements of the company, if you have all of the right reasons, the company has all of the right reasons for changing the full-time if they weren't in the office to part-time, or the 3 days instead of the 2 days, then the company has the right to go ahead and make that change. And if the employee doesn't respond to that, then at least you have the documentation that the requirements of the employer are critical and that this is what they need. So, again, there's the equal and fair situation, but The documentation and the requirements of the employer is paramount here.

Thank you very much. Chris, I want to throw out a question to you. Just let me know if you're comfortable asking— answering this one. It deals with a company, of course, having remote work, and if the company decides to offshore those remote jobs, how— what legal issues, what HR legal issues are we going to come across with that scenario?

There'd be a whole host of legal issues there, I would say. I mean, I mean, first thing that comes to mind is, is can you do that work abroad? There are certain things that are, you know, restrictions that you can't even do abroad. From the employment context, you'd have, you know, are you subjecting yourself to another jurisdiction's, another country's rules? And that is something that would be even beyond the scope. You know, what those rules could be would be beyond the scope of this webinar. But, you know, those are the kinds of things you need to think about. Are you displacing other workers? You know, what, you know, you're going to need to go— it's a very fact-specific analysis, you know, So if there was a union agreement, you'd have to consider that. If there was other employees who were there, you know, what is the impetus for this? We'd go through, you know, our analysis would be discussions with the employer about what the impetus was for this change. You know, if employees are, you know, complaining about the way they're being paid, for example, that would not be a good thing to just offshore their jobs all of a sudden. That could be viewed as retaliation. I mean, this is the sort of thing, again, that would be very, very fact-specific what's going on there.

Yeah, I mean, potential for, for WARN issues depending on the number of employees. I know I came across a New Jersey state law that dealt with call centers specifically and kind of laying off certain numbers of call center employees and that there were certain requirements for those types of layoffs which may come into play. In an offshoring scenario if it's that type of employee. So kind of, you know, there could be a ton of issues with regard to offshoring depending upon the situation.

Well, now that you mentioned WARN Act, it dovetails us into the next question. I don't know, this is more specific to California and whether when you, when you speak of the California Work Act and the nuances there and the company's headquartered in California but allows remote work, and it has 100 employees in 40 states and 50 cities. I'll give you an example. It's given here. The employee location is considered a site of the company. How does that play into it?

So that's a very complicated issue, probably more than we're going to be able to address here today. I think the biggest issue I would flag there that you want to consider, would want to consider, is whether whether the employees are actually California employees or not. Because, you know, you're— you know, most employers think of it as like, this is where this employee is located, um, they are, you know, only working at— you know, they are— they are on paper, you know, working at this one location. Uh, California looks at it a little differently, and it depends on which statute you're talking about. Uh, but, but, you know, they can look at things as an employee who is even spending, you know, one day could potentially be triggering their laws, not necessarily for the whole year, but for that time when they're there. If you come out, have people come out to a convention, you know, you have a retreat in California, during those days you're there, these employees could be subject to California's protections. And again, it depends. It wouldn't necessarily trigger a payroll change, but it could trigger other protections they might be entitled to. Uh, and so that's a very, very specific, you know, analysis of where these employees are. Is each one of them actually located where you think they are? I believe the California WARN Act does not consider out-of-state employees, although I'd have to go back and check on that. They've amended some of their statutes recently in California to allow to account for inclusion of out-of-state employees specifically in some of these employee counts. So for certain types of leave laws, they do include whether the employer has employees in other states. It doesn't make those employees eligible for the leave, but whether the— what they're looking at is if you have the X number of employees, they think you're financially able to provide the leave to California employees. And so the same factors would be considered here. It's a really, really detailed analysis.

Thank you.

Thank you very much, Chris. I have one more question for you, and then we'll wrap up the program today. That question relates to being registered. If a company registers to do business in one state and after a period of time that employee in that state resigns, does the registration of the company stand perpetually, in perpetuity?

It would not automatically lapse in most states. You would have to do something to terminate it, or you could not pay, but that could potentially, you know, not re-register at the end of the year, but that could potentially subject you to penalties depending on the state law. So this is something you would need to keep track of and be on top of. And so if the employee is resigning, you may no longer need to work there, you may need to take some steps to terminate that. But the registration itself would not stand perpetually. These are things you have to keep up like, you know, the same way you would with a corporate registration in your home state. There are annual requirements, fees you have to pay in order for the, you know, to gain the privilege of doing business in that state.

OK, thank you. I just want to say thank you to everyone for joining and attending today. Thank you, the three of you, for generously sharing your insights, very valuable insights. And I want the audience to know that you will receive a link to today's presentation via email along with the presenters' email addresses as well. The link will be posted to the RamonLaw.com website. And our next Coffee Talk is going to be in September. We're taking a little short break over the summertime, but we eagerly await your presence at our next event. And until then, have a wonderful day. Thank you.

Thanks, everyone.

Thank you.