Employment Law

Home Work in the COVID-19 Era

Businesses have reopened and employees are returning to work. But not all employees are ready to return.  For months, many employees had been doing something they never imagined they’d be allowed to do – work from home. Some industries have long embraced telecommuting for employees – telecommunications companies, tech companies, even law firms. COVID-19 convinced even the last-to-join the bandwagon companies that the only way to survive was to allow employees to work from home. And now they’re being asked to return. Some employees can’t return.  They don’t have childcare. A medically fragile family member lives with them. A paralyzing fear of in-person interactions with colleagues from whom they may or may not contract the virus.  With 3 months of productive at-home Zoom meetings, employers can no longer claim that working from home is impossible. So what happens when an employee asks to continue remote work after reopening? First, consider business need. Do your employees really need to be in the office to get their work done? Do they interact with customers in person? Do they have the equipment and tools to perform their work at home? Are there added costs associated with remote work? Or, does it actually save the company money? Has remote work improved or hurt productivity?  Has remote work had a positive impact on employee morale?  Do you have less absenteeism and better engagement? Or, were employees more engaged working in the office? Has remote work had any impact on collaboration and innovation? Next, weigh in your obligation as an employer to provide a safe workplace – even during a global pandemic. Can you maintain social distancing with all employees in the office? Do you need to stagger work schedules to have enough distance between workspaces? Will employees congregate regardless of your COVID rules? Can you establish protocols and procedures to help ensure employee safety? Are you able to maintain an appropriate level of cleaning and disinfecting of common areas, surfaces and equipment? Do you have enough personal protective equipment (PPE) for customers and employees? Are you able to implement some or all of the federal government’s OSHA Guidance on Preparing Workplaces for COVID-19? Will you be able to keep up with guidance from OSHA and other governing bodies as it continues to evolve and change? Can you avoid employment-related legal claims that may be associated with a return to the office? Then, consider the business realities of remote work. How can you adequately supervise employees?  Are your managers prepared to do regular, visual (videoconferencing) check-ins and are they able to manage with accountability even though their employees are working offsite? How can you ensure compliance with wage and hour rules for non-exempt employees? How will you enforce company policies? Do your employees have dedicated space at home that is (mostly) free from distraction? Do you have remote work or telecommuting agreements with your employees that outline the expectations and parameters of remote work? For example, do your remote work agreements specify the duration of the arrangement and make clear that remote work can end at any time? Do they specify who will provide the equipment, who pays for office supplies, whether you will reimburse for use of personal equipment like a cell phone or Wi-Fi, and whether you will pay a stipend for home office use?  Finally, consider the unique circumstances of your employees. Is remote work necessary to accommodate an employee whose existing disability puts them at higher risk if they are infected?  Is remote work necessary to accommodate an employee with existing mental illness like anxiety or depression exacerbated by the pandemic? For more on this, check out The EEOC’s COVID-19 Q&A. Do school and summer camp closures prevent employees from coming into the office? Were childcare issues the reason an employee requested emergency paid sick leave or paid family leave under the Families First Coronavirus Response Act, if that law applies to your company?  If so, could a remote work option make a leave of absence unnecessary? Are there any other unique circumstances that make remote work a good option for certain employees? We understand that navigating these issues is challenging. Balancing business need with compliance with employment laws and managing legal risk can feel like a full-time job. Bullock Legal is here to help with all of your return-to-work legal issues.

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Employment Law

10 Facts Every New Business Must Know About Employment Law

1. Employment laws apply to small businesses too. Many new business owners make the mistake of assuming that employment laws only apply to bigger companies. But that can be a costly mistake. The federal Fair Labor Standards Act, which has strict minimum wage and overtime requirements, applies to businesses of all sizes, including those with only one employee. And while most federal anti-discrimination laws don’t apply to businesses with less than 15 employees, the federal Equal Pay Act and state and local (County) laws often apply to businesses with only a few employees. 2. Being an employer in a right-to-work state like Florida doesn’t mean you can’t hire and fire at will. The term “right-to-work” does not mean that an employee has a guaranteed right to a job and can only be fired for “cause.” Employees of private businesses who do not have any employment contract can be fired for any reason or no reason at all, as long as the reason does not violate the law.  Right-to-work simply means that employees have the right to choose whether or not to join a labor union and employers cannot interfere with that right. 3. The IRS is not the only one who will care if you’ve misclassified your employees as independent contractors. The Department of Labor will also care and your workers will care too, especially if have been fired and realize they should have been paid overtime for all of those late nights on the job. Giving your workers a Form 1099 or having them agree to work as independent contractors is not what determines a worker’s status. A true independent contractor must have independence and control over the work they perform and most often, they are not performing key integrated roles within the company. There are a complex set of factors used to determine the classification of workers. These should be reviewed with an experienced employment lawyer. 4. Conducting background checks and checking social before hiring someone is risky.  That doesn’t mean you can’t do it. It just means you need to understand how to do it in a way that allows you to make informed hiring decisions while reducing the likelihood of a failure-to-hire claim or a Fair Credit Reporting Act violation. 5. Paying an employee a salary, does not mean you don’t also owe overtime pay. Whether an employee must be paid overtime for all hours worked over 40 in a workweek depends on both the employee’s salary and their job duties. It is the employee’s job duties, not their job title, that matters. Employees whose job duties do not meet the Department of Labor’s requirements need to be paid overtime if they work over 40 hours a week. 6. Non-competes are valid in Florida. Non-competes and non-solicit agreements are valid in Florida if they meet certain requirements. While that may be good news if you’re considering using them with certain employees, it also means you need be careful when hiring. Ask your candidates whether they are subject to any restrictions from a former employer, and if so, make sure you review their restrictions before making the employment offer. 7. Companies who do not stop workplace sexual harassment pay a hefty price. And it’s not just the cost of legal fees and settlement costs. It’s low employee productivity, employee turnover and the reputational harm that comes with the backlash from the public. More than 25,000 sexual harassment charges were filed with the EEOC in the last two years. While high-profile claims may not be hitting the news daily, sexual harassment claims are still filed every day. Employers who don’t have a sexual harassment policy or aren’t actively engaged in creating a culture of no tolerance are behind the curve.  Having a policy that includes a clear procedure for reporting harassment is critical. Just as important is making sure complaints are taken seriously and promptly addressed. 8. Managers and business owners can be sued personally. Managers and business owners are often sued personally in suits by former employees. The Fair Labor Standards Act and the Family and Medical Leave Act both allow for individual liability. State claims like defamation and intentional infliction of emotional distress are also common claims brought against managers. Managers should be trained on the basics of employment law – especially on hiring, firing, disciplining and addressing complaints. Knowing they can be joined in an employee lawsuit helps underscore the importance of making good, consistent employment decisions for the company. 9. Workplace accommodations are required for more than just disability and medical reasons. When we think of workplace accommodations, we often only think about accommodations for disabilities under the ADA. But an employer’s obligation to make reasonable accommodations in the workplace extends to religious reasons (a Seventh-day Adventist, for example, who cannot work on Saturdays), medical reasons (a woman who is recovering from childbirth who needs an extended leave of absence) and nursing mothers (breaks must be given to allow nursing employees to express breast milk in a private space other than a bathroom). An employer’s obligation to accommodate is triggered whenever it becomes aware of a need; an employee does not have to make a formal request. If an accommodation is granted, it need only be reasonable. It does not have to be the employee’s preferred accommodation. If you are unsure whether an accommodation complies with your legal obligations, talk to an experienced employment lawyer. 10. When dealing with challenging employees, make your expectations clear and keep a good record. Most new hires start off in a honeymoon period. And at the first sign of trouble, managers often delay difficult performance conversations, resulting in inconsistent messages. Communicating concerns and deficiencies in performance when they arise can be the difference between an employee who thinks they were treated fairly and one who files a lawsuit. Personnel issues can be tricky, especially risky terminations, layoffs, and workplace complaints involving discrimination, harassment and retaliation. An experienced employment lawyer can guide you through these tricky issues. At Bullock […]

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