In 1965, Intel cofounder Gordon Moore predicted “the number of transistors incorporated into a chip will approximately double every 24 months.”[1]  What would later be coined as “Moore’s Law,” proved true in the following decades.  Futurist Ray Kurzweil would subsequently refer to this rapid acceleration of technological advancement as the “Law of Accelerating Returns.”  Kurzweil predicts that in the 21st century, humans will achieve 1,000 times the technological advancement of the 20th century.[2] 

In the era of Coronavirus and “social distancing” law firms and businesses have had to utilize available technologies to move entire workforces into a work-from-home model.  Of particular concern, many of these employees are non-exempt hourly wage earners.  Done at rushed pace and in a haphazard manner, there has been little time to contemplate the legal ramifications of socially distant employees.  For example, how do I ensure employees take required breaks?  How do I track employee overtime?  Do I have to reimburse employees for internet access?  What steps must I take to keep customer data protected now that employees are using home computers and home networks?  What kind of duty do I have to my employees to make sure they maintain a safe and healthy work environment at their homes in terms of COVID-19?

Further complicating these inquiries, depending on the state or states where your employees are located, a single business may be expected to comply with multiple sets of rules at the state and local level.  In such instances, it may be easiest to establish uniform policies which satisfy the most-restrictive rule of the varying jurisdictions.  For example, where an employee works from a jurisdiction with both a state and local minimum wage (i.e. San Francisco), the employee is likely entitled to the higher minimum wage. 

Just as technology has facilitated employees to work remotely, it can also be used to assist employers and employees to remain compliant with federal, state and local laws as they do so.  Follows is a discussion of just some of the questions that may come up as your employees begin to work remotely.

  • How do I ensure my non-exempt employees take required breaks while they work from home?

California Labor Code section 512 requires employers to permit and authorize non-exempt employees to take 10-minute rest breaks for every four hours worked and a 30-minute meal period if an employee works more than five hours per day.  If an employer fails to provide such a rest or meal period, the employer shall pay an additional hour of pay to the employee. Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004, 1018 (2012), citing Murphy v. Kenneth Cole Productions, Inc. 40 Cal. 4th 1094, 1114 (2007); Cal. Lab. Code § 226.7.  Although these monetary damages could add up and be significant, in the midst of a pandemic, even more important than the risk of paying additional wages is the risk of pushing the mental health of already stressed workers to the brink of what they can handle.

Even if you are used to complying with these laws at your place of business, it may be a challenge to ensure your employees continue to exercise these rights and that you continue to be compliant with these laws as your employees begin to work from home.

The first step is to be especially cognizant of these rules yourselves and to communicate these rules to your employees.  Let your employees know that you are aware of their rights and make sure that they are aware of their rights as well.   A sudden onslaught of changes to your business, brought on not just by concerns about COVID-19 but by the rules and guidelines put in place to prevent its spread, has likely created more work for you and your employees and infused chaos into your work structure.  Still, you must be mindful to ensure that your remote employees have the opportunity to use a meal period however they desire, and not be tied to their desk or phone, even if they are working from home.  Your employees may need a real break in the middle of their workday now more than ever.[3]  Do not allow this chaos and increase in work tasks to result in you not giving your employees a reasonable opportunity, either through actual or implied pressure, to take a break, in which they are free to come and go as they please.

In order to ensure that both your company and your employees are complying with this law, give your employees the ability to track and notify you of their break and mealtimes.  If you have a small company, it may be enough to ask employees to keep track of their time and email it to a designated employee, to be entered into a spreadsheet.  Or, especially if you have more employees or are capable, there are many automated workforce management tools, including ones that are hosted in the Cloud, that will permit time recordkeeping and reporting to be more accurate and easy to track.  

  • How do I track employee overtime?

Similar to the above, it is important to keep track of employee hours to comply with overtime pay requirements.

Under the federal Fair Labor Standards Act (FLSA), employers must pay overtime when a covered employee works more than 40 hours in a work week.  In California, in addition to requiring overtime once a 40-hour work week has been met, employers must also comply with Labor Code section 510, and pay overtime whenever a nonexempt employee works over eight hours in a day.[4]

As a California employer, it is a best practice, and arguably necessary, to require time keeping and reporting by your non-exempt employees each and every day, to ensure that overtime is measured properly and paid accordingly.

As it is said, “necessity is the mother of invention.”  This may be a good opportunity to obtain and begin using a Cloud-based recording keeping tool if you have not already.

  • Even though it was not my choice for my workforce to become remote, do I need to pay for internet access for my employees?

In California, according to Labor Code section 2802, an employer must reimburse employees for all “necessary expenditures” that an employee incurs that are directly related to his or her work duties.  It is further detailed in the code that these expenditures shall include “all reasonable costs.”  Cal. Lab. Code § 2802(c).  This means that, generally, if an expense is incurred by an employee, and if that expense is necessary for an employee to carry out their job duties from home, then an employee must be reimbursed for that expense.  In California, reasonable expenses have included mileage (Gattuso v. Harte-Hanks Shoppers, Inc. 42 Cal. 4th 554(2007)), cell phone use (Cochran v. Schwan’s Home Service, Inc. 228 Cal. App. 4th 1137(2014)), and internet access (Fox v. Eclear Int’l Co., Ltd. 2018 U.S. Dist. LEXIS 226213 pg. 37 (C.D. Cal. June 13, 2018), applying California Law and Labor Code section 2802).

Employers can avoid reimbursing employees for expenses by preventing them from incurring those expenses in the first place, such as by providing them with the items they need to perform work from home, whether those items be relatively inexpensive (such as paper clips and pens) or relatively expensive (such as computers).  But this is not usually possible or the most practicable in the case of internet access, as most employees maintain their own internet service at home.

So what should this mean for internet access in the current situation, where employers are not per chance agreeing for employees to work from home, but being ordered to do so by various levels of the government?  The California Supreme Court has expounded that the main purpose of Labor Code section 2802 is to make sure that employers do not pass on the expenses of operating a business to their employees.  Gattuso v. Harte-Hank Shoppers, Inc., 42 Cal. 4th 554, 562 (2007).  Furthermore, Labor Code section 2802, by its own language, requires that “all reasonable costs” (emphasis added) incurred by employees in the course of their duties be reimbursed.  And it is certainly true that many employees working remotely right now are using their internet connections to do so.  Furthermore, many employees have no doubt had to upgrade their internet connections in order to maintain good enough internet connectivity to permit working from home in the current environment.  Therefore, considering the main purpose of the law not to pass on operating expenses to employees, we can advise that employers should strive, at least as a best practice, to pay a proportionate amount of internet expenses for their employees if it is necessary for them to use the internet in order to perform their work duties.

 

[1] http://www.intel.com/content/www/us/en/history/museum-gordon-moore-law.html

[2] Kurzweil, The Singularity is Near, 39.

[3] However, it is important to note, that although employers must permit employees not to work if they do not wish to, “the employer need not ensure no work is done.”  Brinker Restaurant Group Corp. v. Superior Court, 53 Cal. 4th 1004, 1017 (2012).

[4]  There are exceptions, such as the alternative work week schedule provided for under Labor Code section 500(c), which allows workers to work longer shifts and fewer days, or “make-up time” as authorized by Labor Code section 513.

Author: Anjuli B. Woods, Shareholder, Enterprise Counsel Group and Reva B. Hamon, Associate, Enterprise Counsel Group