Welcome to the Age of Bleisure: Employment Risks and Implications From the Pandemic-Related Rise in Remote Work
The pandemic altered the way many people live and work. As millions of workers were sent home to work remotely, employers grappled with a myriad of workplace issues that raised questions not addressed by existing labor and employment laws, and the lines between work time and leisure time became blurred. Although the term “bleisure” stemmed from the travel industry and international freelancers who lived and worked anywhere, human resources professionals use it to describe the blurring lines between where people work and where they do non-work activities, including their homes, a beach, a café, a resort, etc.
Now, even with businesses attempting to return to a sense of normalcy and get staff back into the physical workplace, there are several issues both companies and employees must consider when determining whether partial or complete remote work will become the new normal for some employees.
A brief history of remote work
The idea of remote work, or working from home, isn’t a new one and has been around for decades – albeit not something that everyone was allowed to take advantage of.
During the fuel shortages of the early 1970’s it was known as telecommuting. That concept evolved into flex work arrangements designed to recruit and retain working parents. Prior to the pandemic, there was also a trend of white-collar gig economy workers taking freelance and consulting jobs that allowed them to work from anywhere in the world. However, only a small percentage of employers had a hybrid or flex-time workforce.
Everything changed in 2020 when the SARS-CoV-2 virus and COVID-19 arrived. The pandemic and resulting lockdowns meant most white-collar workers went remote, including many hourly employees who would never have been eligible to work from home before the pandemic. As lockdowns have eased, some companies have chosen to stay 100% remote, others have gone to a hybrid workplace, while some have demanded that their employees return to the workplace full time. Regardless, COVID-19 has altered the way many of us work, and with those changes come more opportunities for conflict and potential legal problems.
Wage and hour issues for hourly, non-exempt employees
When it comes to working from home, whether a business is 100% remote or has a hybrid structure in place, there are issues with timekeeping, compensation, and what constitutes working versus what does not, especially for employees paid on an hourly basis.
Historically, non-exempt employees working in the office must punch in via a time-clock or enter their time on a timesheet. They also tend to have a set schedule and, pursuant to the Fair Labor Standards Act, must be paid time and a half for any time over 40 hours per week they work. But what happens with an hourly employee working from home? With remote work, there is a potential for abuse by an employee who stays clocked in when taking lengthy breaks or streaming Netflix, and the employer has no real way to monitor the employee’s actual time devoted to work.
Remote work, conversely, also presents the potential for abuse by the employer. If a supervisor expects employees to be available and to answer emails, texts and messages outside of their normal shift, that’s compensable time that a non-exempt employee is required by law to be paid for by their employer. Employers who claim to not allow overtime work, and who instruct employees to not clock more than 40 hours a week, are in violation of the Fair Labor Standards Act (FLSA) if remote work stretches an employee’s work day beyond what it would be in the office.
Salaried, exempt employment and remote work holds another set of risks
Salaried, exempt employees are employees whose duties and level of pay renders them exempt from the timekeeping and overtime requirements of the FLSA. As a result, these employees typically make the same salary whether they work 10 or 100 hours in a week. Remote work by salaried employees creates the potential for abuse by both the employee and the employer.
An exempt employee can take advantage of her exemption status when working away from the office because an employer, in order to maintain the overtime exemption for exempt employees, cannot dock the employee’s salary on a day where the employee works even a single hour. An employee can essentially “work” from the beach, the mountains, or anywhere they chose as long as they have a good Wi-Fi connection and phone, and the employer has minimal means to monitor how many hours a day the employee is actually working, and must pay the employee his or her full salary if they work at all.
The reverse can happen too. Some companies expect exempt employees to always be available, including before and after business hours, including weekends. There’s no overtime compensation for exempt employees who regularly work over 40 hours. When an employer provides equipment and approves a salaried worker to work remotely, who decides when the employee can “sign off?” The lines between working, not working, vacation, sick leave and working remotely have blurred, and many salaried employees have reported they have worked far harder remotely during the pandemic – expected to be available 24/7 – than when they were working in the office.
Culture, morale and discrimination issues with demanding workers return to the office
Now that many firms are requiring at least some employees to return to the office, morale and cultural issues in the workplace have emerged. There can be a “haves versus have-nots” sense in a workplace where administrative or lower level staff are required to be in the office every day, while executives are allowed a fully remote or hybrid schedule. Who decides which staff can remain remote, especially when those same employees were able to work from home in a productive way during the pandemic lockdowns?
The current labor shortage exacerbates the challenges with bringing employees back to work. What about employees who refuse to return to the office because they discovered they liked the flexibility of working remotely from anywhere? If you demand they return, they will most likely quit. Can you replace them if they do? Many companies are discovering that the answer is “no.” That’s because many jobseekers are looking for remote only jobs they can do from home or anywhere, or at least jobs in hybrid workplaces where their options are flexible.
When determining who can work remotely and who cannot, employers also need to be cognizant that these decisions aren’t made on a basis that could be viewed as favoritism or even discrimination. For example, an employer who allows an employee to work from home a week that his car is in the mechanic’s shop, or his mother is visiting from Detroit, but makes an employee use a vacation day when her child’s day care is closed. These decisions should be made based on the nature of the job and in a consistent manner, generally without regard for the reason for the absence (except as discussed below with respect to ADA accommodations).
The potential for disagreements around sick leave versus working from home
What about when employees are sick? Can they really take sick leave anymore? With the option to work from home, some employers expect employees to work while they’re ill, just from home. Before so many people worked remotely, being sick meant staying home and resting. While some people may have previously pushed through a cold or the flu at work – and gotten coworkers sick as a result – COVID-19 taught people the need not to expose others.
With the lines blurred between remote work, vacation and sick leave, there are issues related to employers trying to force staff to work no matter how sick they are. And on the opposite side of the issue, what if a company has a worker who always claims to be working from home but is really sick and not working or is taking care of a child who is ill? Is that person working or on sick leave/PTO? These issues are all significantly harder to monitor in the “new normal” where working from home has become accessible for so many employees.
A precedent may have been set for future ADA reasonable accommodation requests
Before COVID-19 lockdowns, many disabled workers, especially those with mental disabilities including anxiety and depression, attempted to gain an accommodation to work from home when their physicians determined they couldn’t function in an office environment but were capable of doing the same job from home. At the time, remote work wasn’t typically seen as a reasonable accommodation (defined as a modification to the job or working environment that enables a person with a disability to perform the essential duties of a job, as long as those accommodations don’t cause undue hardship or a direct threat to the organization), because courts usually sided with employers who claimed that an employee’s on-site presence interfacing with his or her workplace team, managers, etc., was an essential function of the job.
However, the pandemic arguably changed that. For almost two years, many employees successfully and productively worked from their homes, learning to seamlessly interface through platforms like Zoom. As a result, it becomes much more difficult for an employer to argue that working from home is not a reasonable accommodation. Moving forward, the issue of who can claim the right to work from home on the basis of disability and when those requests can be denied will be an issue for employers assessing reasonable accommodation requests by disabled employees.
There are security and employee privacy implications to working from home
With more employees working remotely, security issues are something that both employees and employers might not fully grasp. Data, cyber security, and employee privacy issues give rise to significant potential for disagreements and legal issues.
In the past, work equipment mostly stayed at work, with the exception of a laptop or cell phone for some salaried workers who needed to travel and take portable equipment with them. Obviously, this same type of equipment still belongs to the company and returns to the company when workers resign or are fired. Plus, employees shouldn’t expect any privacy when using the company-provided computers, laptops, tablets and phones.
However, when an employee works from home on their own equipment but is connected to employer servers and using employer-provided software, the security and privacy issues aren’t as cut and dry. The same thing holds true if an employee is using company equipment at home, but on their own internet. There’s potential for conflicts around whether remote workers can expect privacy if during a break they go on social media and post something their employer doesn’t like or doesn’t agree with. Conversely, employers also have a more difficult time securing their confidential information and trade secrets from misappropriation by departing employees when they are working from home.
Confusion about which state laws apply to remote workers
In general, an employee is governed by the laws of the state where they work and not where they live. Those laws haven’t changed. When an employee works from the company office or another onsite location, there’s no question about which laws govern that worker.
However, things get fuzzy when people work remotely and no longer go to an office or jobsite.
An employee might live in Texas and work from home, but the company they work for is in North Carolina. Which state’s laws apply to that employee? For states with similar employment laws, it’s not a huge issue. But these issues can become complicated if an employee is living and working remotely in a state like California that has significantly more employment-related laws and regulations on issues like minimum wage, paid parental leave, and mandatory paid sick leave than the state and locality where the employer is physically located. Now imagine that worker, whose employer is a domestic company, moves overseas to work remotely from a European Union country where employees cannot typically be fired at will. Determining what laws apply to remotely-based employees is a complex and ever-developing issue.
How mediation can help
Personnel disputes are long, expensive and emotional for everyone. Furthermore, they don’t usually result in a lot of money for the winning side. They also take a long time to resolve in court – typically two years on average, and longer if the dispute arises under a law that requires a pre-suit administrative process before an agency like the United States Equal Employment Opportunity Commission (EEOC).
Often disgruntled employees retain counsel, send their employer a demand letter, or make an internal complaint before filing an administrative charge or lawsuit. In these cases, early mediation can help resolve a dispute before it escalates. An experienced mediator can help all parties on all sides of an issue come to an agreement. They can also provide a compassionate ear to employees and their employers who are understandably upset and who perhaps, prior to the dispute, had a close working relationship. When a situation is too upsetting for an employee and employer to face each other in person, remote mediation over a video meeting app, like Zoom, can help. However, it’s almost always more effective to mediate disputes in person, and virtual mediations should only be used as a last resort.
Miles Mediation has successfully mediated all types of employment disputes. We’ve created an effective mediation environment for both live and remote mediations for employers and employees to resolve disputes at any stage of the pre-litigation or litigation process, creating solutions that avoid a long, drawn-out court case.
ABOUT MEREDITH JEFFRIES
Meredith has practiced employment law in Charlotte for over two decades. She brings to the mediation table a unique skill set garnered from her diverse practice experience. She has represented employers of all sizes, including the fifth largest employer in the United States as the Charlotte practice group leader of an AmLaw 100 firm, start-up companies with less than a dozen employees at the boutique firm where she is now a partner, and employers of all sizes in between. Meredith also has voluntarily represented numerous employees in successful mediations through the Western District of North Carolina’s Pro Se Settlement Assistance Project and is a certified mediator through the Dispute Resolution Commission for the state of North Carolina.