Legal Pitfalls of Working from Home: Where “Home” Is Matters

Although 2020 is a year most wish to forget, challenges employers faced in 2020 regarding the workplace migration to “home” linger.  Nyemaster Goode helped numerous clients navigate thorny legal issues in sending workers home.  Many employers still have significant portions of their workforce “working from home.”  But do you know where “home” is for each of your employees? 

Many employers have learned months after sending employees home that certain employees are working from “home” at a second home, a family member’s home, or even somewhere sunnier. Where an employee is physically working from is no laughing matter.  States vary on how they regulate the workplace, but most states have one legal fundamental in common: they regulate people who are physically working within the boundaries of their jurisdiction. 

Employers should take stock of where their employees are physically working when “working from home.” An employer that believes it is an “Iowa employer” or operating out of one state, could find itself subject to differing state laws depending on employee location.  For example, there may be payroll and income tax withholding implications for employers who have employees working in a different state.  State laws vary greatly regarding a host of employment related issues including:

• number of employees for non-discrimination laws jurisdiction;
• employee productivity monitoring rules;
• special pay requirements;
• workers’ compensation differences;
• data breach notification requirements;
• mandatory paid time off;
• final paycheck rules; and, of course,
• taxes.

A few states have also issued guidance suspending application of their typical regulations during the pandemic, creating another potential legal trap for the unwary.  Employers who do not yet have a work-from-home policy should consider implementing one to address these issues and even where employees are permitted to work (i.e., from their home as opposed to another locale). 

Successfully transitioning employees to work from home brings about one set of legal challenges, but employers will also face another when they decide to bring their workforces back to the office.  A change in a work-from-home policy or migration back to a traditional central workplace should be done thoughtfully from a business and legal perspective to minimize discrimination claims and other legal risks. 

Nyemaster Goode’s Labor and Employment Practice Group is experienced in drafting and updating work-from-home policies in the wake of the pandemic and can also guide employers in bringing their employees back to the office.  Clients with questions regarding work-from-home policies and considerations should contact one of our labor and employment attorneys.