Employers seek remote workers classification rules

Conversations about a third way to classify California workers that departs from the "employee" and "independent contractor" binary have largely focused on rideshare drivers, but one management-side attorney says similar considerations should be made for another group: remote workers.

Since shelter-in-place orders in March forced many employers to provide remote-work options for the first time, September Rea's clients have been asking how they can enforce state labor and employment regulations that are less clear-cut when they're being applied in a remote context, the Polsinelli principal said. Clients' questions include how to keep track of employees' work hours, how to find out if they're taking meal and rest breaks at the appropriate times, and how to ensure their workspaces are OSHA compliant.

Employers in some industries have long allowed employees to work remotely, but others have had a harder time adjusting, Rea said. Exempt employees like lawyers or computer programmers were often able to work remotely even before the COVID-19 pandemic, but "for a more traditional, non-exempt position like an assistant, they're rarely if ever allowed to work remotely," she said.

Because non-exempt employees are entitled to overtime and meal and rest breaks at specific moments during shifts, employers need to accurately track their hours, a challenge for which many companies with non-exempt employees were technologically unprepared. "Previously we didn't want someone to work remotely because of these obligations," Rea explained, adding she would like to see the Legislature relax some of these rules when it comes to remote workers. "There's a burden on the employer to keep accurate records and to prove that ... breaks were taken," she continued. "I think there's a better framework for that that allows and puts the onus on the employee to manage their own schedule if they're allowed to work remotely."

Plaintiffs' attorneys say existing labor and employment regulations give these employers some flexibility, however. John Mullan, a partner at Rudy Exelrod, Zieff & Lowe LLP, referred to the state Supreme Court decision in Brinker Restaurant Corp. v. Super. Ct., 53 Cal. 4th 1004 (2012). "The Brinker case provides some relief from employers actually having to make sure that their employees are taking their meal breaks, as long as they provide them," Mullan explained.

Beth W. Mora of Mora Employment Law noted employers also have the option to waive meal and rest periods altogether for some employees, with their consent. Many have the technology to track when employees log in and out of their computers, their email activity, and their Zoom calls, information that can help employers understand when their employees are working.

But Rea maintained existing technology is not foolproof. She pointed to employers who typically require employees to clock in and out at secondary checkpoints, such as a parking lot or entryway to a building, in addition to their computer. By cross-referencing this information, employers can make sure employees are not being pressured to clock out at their desks but continue to work in the office without overtime pay. "When someone's working from home, we don't have those other options. We only have whether they manually clock in or out, so they may say I was encouraged or required to complete my tasks" without overtime pay, Rea explained, adding not all employers are able to track email activity or whether employees logged in remotely.

Still, Mora insisted many obstacles employers are facing can be tackled by clearly communicating remote-work policies and expectations of employees. "This is definitely a time frame when employees are struggling to get ... paid on time. They're struggling to get them paid correctly, and every paycheck matters," she said. "Any attempt to lessen the rights of employees for wage and hour laws is not something I would be supportive of."