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Employees Working Remotely Out-of-State Pose Risks


More than a year into the COVID-19 pandemic, telecommuting is the new normal for many employers, and many telecommuting employees are doing so from a state other than their employer’s home state.

Although an arrangement like this may be fairly simple from a technological and logistical standpoint, employers with out-of-state remote workers should consult with an employment lawyer to discuss associated legal risks and develop policies to address them.

First, employment laws such as wage-and-hour protections; paid and unpaid family, medical and sick leave requirements; unemployment and workers’ comp requirements; and even rules about what must appear on paystubs can vary from state to state.

For example, California requires an employer to pay overtime to an employee who works more than eight hour in any one day. Meanwhile, Oregon employers only need to pay employees for any hours worked beyond 40 hours in a week.

Let’s say an employee working remotely from California for an Oregon employer works nine hours per day for four days straight.

An employer that fails to pay overtime could find itself in court for violating California overtime laws.

Additionally, these arrangements might require employers to rethink their benefits packages.

If an employer is using a regional health insurer, this may not adequately meet the needs of out-of-state remote workers.

Meanwhile, an employer with unionized workers may need to take a close look at its collective bargaining agreement and how it defines such things as “principal place of employment.”

The best way to address all these situations is to take a proactive approach by figuring out exactly where each employee is working and consulting an attorney to draft policies for remote work, including working hours and a definition of work space.