Like all employees, nonprofits are struggling to manage their remote employees effectively. As the reality and (potential permanence) of remote work become more commonplace, nonprofits are considering how their policies, practices, and strategies for managing remote employees need to adapt and change. Now that many employees are becoming more comfortable with remote work, nonprofits should also prepare for greater demand from employees to work remotely or on a hybrid basis. This transition to remote and hybrid work practices demands a healthy dose of communication, flexibility, and patience on the part of all parties. When it comes to legal issues, here are some specific considerations.
Managing Employees Remotely
Employees (and employers) may have a very different understanding of what working from home entails. That’s why it’s essential to set clear expectations concerning the job and telecommuting practices. A telecommuting policy can help to ensure that everyone is on the same page. It might include topics such as; hours of availability and documentation, expected response times, dress, behavior, and work setting requirements; and data privacy and security expectations.
Nonprofits may also need to review and revise existing job descriptions to better manage remote employees and their unique needs. Considerations might include required equipment and training (i.e., for new technological proficiencies) and additional self-motivation requirements. When evaluating employees’ performance, ensure that supervisors schedule regular check-ins that allow for feedback both ways. It’s also important to document conversations with employees appropriately, using video and voice communications whenever possible (best practice is to ask for consent if recording) and following up with an email when necessary.
Wage and Hour Issues for Non-Exempt Employees
Non-exempt employees are subject to minimum wage requirements and are entitled to overtime pay and regularly scheduled breaks. Violations can result in liability for unpaid wages, attorneys’ fees and costs, and reputational damage. To avoid such issues, make sure that work-from-home procedures for non-exempt employees include a check-in process at the beginning and the end of each workday via an established standard method (i.e., email, Slack, etc.). Require that employees track and timely submit all hours worked every week.
Communicate to non-exempt employees that they are required to take meal and rest breaks and inform their supervisor immediately if they miss a break–and that supervisory approval is needed to work overtime. Employers may want to consider imposing specific no-work hours, as well. As a final note, employers cannot require an employee to cover business expenses if doing so would reduce the employee’s earnings below minimum wage. Therefore, it may be necessary to provide non-exempt employees with any needed equipment.
Ransomware and hacking scams have surged as cyber hackers have taken advantage of the wholesale move to remote working arrangements. We talk more about these issues in a previous post. Failure to implement effective cybersecurity policies and procedures can result in customer, vendor, and employee data loss or theft. Likewise, new data privacy regulatory regimes, such as the EU’s General Data Protection Regulation and California’s Consumer Privacy Act, impose affirmative obligations on companies (and their third-party vendors) to protect personally identifiable information.
With the move to remote, nonprofits should update their cybersecurity and data privacy policies to reflect the changing work environment and remote working practices. Employees should be adequately trained in cybersecurity practices. Purchasing cyber insurance is another possible protective measure.
COVID and OSHA
OSHA requires employers to maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. Each state has its requirements for telework and social distancing concerning COVID-19. Each nonprofit’s protocols should respect these requirements for both at-home work and where occasional in-person work is required. And while COVID makes it impractical to conduct inspections at present, nonprofit employers should discuss, document, and address potential hazards in the home workplace, such as ergonomics, slip and fall, and other issues.
Nondiscrimination and ADA
With COVID-19 disproportionately affecting specific populations (such as the elderly or those with comorbidities), it is vital to actively combat inadvertent stereotypes, even for benign purposes (i.e., allowing older employees to work from home but not others). Nonprofits should ensure they have a standardized process for administering flexible work arrangements and should document legitimate, nondiscriminatory reasons for requiring in-person versus remote work. Also keep in mind that flexible work arrangements, such as working from home, can also be considered a reasonable accommodation.
The ADA permits employers to make inquiries of employees that are reasonable and a business necessity. Also consider that existing accommodations may need to be updated or new accommodations required to adapt to new workspaces.
Ellis Carter is a nonprofit lawyer with Caritas Law Group, P.C. licensed to practice in Washington and Arizona. Ellis advises nonprofit and socially responsible businesses on corporate, tax, and fundraising regulations nationwide. Ellis also advises donors with regard to major gifts. To schedule a consultation with Ellis, call 602-456-0071 or email us through our contact form.