Labor Laws for Remote Work in California
The COVID-19 pandemic has made an unprecedented impact on society. Within the context of employment law in California, the increase of remote work could present potential legal battles for employers. Here’s everything you need to know about California labor laws for remote workers.
While the influx of remote workers is fairly recent due to the pandemic, employers and employees should keep in mind some of the following factors to avoid legal challenges as COVID-19 persists.
Remote Work in California: The Basics
It is legal to work remotely in California, but it is important for the employer and employee to mutually agree upon a set of rules and expectations for this kind of work–– especially as it is becoming more common during the pandemic. Remote workers are different from independent contractors, meaning that they have the same rights and protections that they would be entitled to in an in-person work environment. These benefits are required by California law and include, but are not limited to, paid time off, paid lunch, and paid overtime. The Equal Opportunity Commission recognizes many remote work arrangements as appropriate accommodations for employees who have disabilities. Per anti-discrimination laws, employers must create a remote work option, equivalent to the work that would be done in-person, for the employees who need it.
Related: Types of Workplace Discrimination in California
As the pandemic evolves, many more people are working from home. This may call for additional labor laws in response to the increase of remote workers in California and the United States as a whole.
Legal Implications of Telecommuting
Employers must establish a policy for telecommuting, which is otherwise known as using technology to work from home. This policy will specify what the employer regards as “work in a remote setting” and also provide information about maintaining records. While the Fair Labor and Standards Act covers most of the work employees do, it does not explicitly define what “work” entails. Thus, employers have to form a detailed telecommuting policy for each position offered at their entity, communicate the policy for each employee’s respective positions, and receive each employee’s written consent in agreement to the terms and conditions outlined. Additionally, both the employer and employee must agree upon a plan for maintaining records and keeping track of hours worked.
Is an employer responsible for reimbursing the technology expenses a remote employee requires?
California Labor Code requires that employers reimburse their employees for any reasonable business expenses, including any loss that the employee incurs while performing their job. It can be tricky to define the grounds for reasonability in remote work cases, but possible examples that qualify for reimbursement are a cell phone data plan or internet access, especially because stay-in-place orders may require employees to use their own technology at home. Additionally, most government-issued technology cannot be brought home for confidentiality reasons. In these cases, most remote employees will need to use their own technology at home, which can get pricey.
Concerns Over Remote Workplace Flexibility
It is more difficult for employers and employees to track hours in a remote setting. For example, an employee could be working less or overtime at home, while still being paid the same amount as they would in their work setting prior to the pandemic. Secondly, California workers are entitled to a compensated, 10-minute rest break during the workday. Additionally, a 30-minute unpaid food and drink break is required for every 5 hours of work. An employee can decide to forgo this break, but this means they cannot work longer than 6 hours total for the day. This can be difficult for employers to enforce when employees are working remotely and are operating on different schedules. The universality of the workplace can dissolve when employees are working on their own time. For example, California employees are required to take their lunch break right before the fifth hour of their work shift. If employees do not begin and end their shifts at the same time, it can prove difficult for an employer to ensure that everyone is taking their proper breaks.
Potential Legislative Solution for Remote Work Schedule Flexibility
The Telework Flexibility Act (Assembly Bill No. 1028) would provide employers and employees with the flexibility required for remote work. If passed, this bill would adjust the parameters of a given workweek, which currently stands at 8 hours per day and 40 hours per week with paid overtime. This bill, however, would grant each employee the autonomy to request their own remote work schedule to suit their lives at home. The bill offers employees the ability to work up to 10 hours a day within the structure of a 40-hour workweek. This option eases an employer’s obligation to pay employees for working overtime outside of the current 8-hour per day limit.
Under the new bill, employers have the option of setting specific break time periods or notifying employees of their right to choose their break time. These modifications to current legislation would only apply to remote workers. A set of agreed-upon terms, along with the written signatures of both the employer and employee would be required before a schedule is created. Enforcement of this bill would need to be taken on by the Division of Labor Standards Enforcement in the Department of Industrial Relations.
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