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Managing Remote, Non-Exempt Employees

July 29, 2021

Remote non-exempt employees present numerous risk management challenges, and this article addresses two of the most common.

First, let’s review what “non-exempt” means. A non-exempt employee is one to whom the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) apply. The employee is not exempt from those provisions. Consequently, a natural starting place is wage and hour compliance. FLSA places a burden on employers to measure and record all non-exempt employee time worked. When employees are permitted to work “off the clock,” they are working without compensation, which violates the Act.

Of course, that part of the FLSA was designed to prevent employers from forcing employees to perform uncompensated labor, but employees often and unknowingly volunteer to do work before they clock in and after they clock out. If employees do things like turn on computers, read company email over morning coffee, or take other actions beneficial to your company before they clock in, there is a problem with uncompensated work. Moreover, good citizens who do things like straighten up their desks and take out the garbage after clocking out could also be creating FLSA headaches. It is important to ensure that remote employees understand what constitutes work for the company and that they record their work time accordingly.

Remote employees are also prone to violating safety rules. Even employees with a long and positive track record can develop work habits that do not conform to company policy. The Occupational Safety and Health Administration (OSHA) requires employers to maintain a safe work environment. However, that same agency has recently told its enforcement officers to crack down on employers who punish employees for violating safety rules if the violation resulted in an injury.

OSHA’s theory is that such discipline may suppress injury reporting or that it may constitute discrimination or retaliation against those who report injuries. Unfortunately, due to lack of direct supervision, remote employee safety violations may remain unknown until an injury is reported. Therefore, employers should implement measures to ensure safety rules are being followed so that any appropriate disciplinary action to support safety occurs before a worker gets hurt. Possibilities include unannounced site inspections, auditing to check that disposable safety equipment is being consumed at an appropriate rate, conducting safety training sessions regularly, and inspecting non-disposable safety gear on a routine basis to ensure that it is being used and properly maintained.

When conducting safety training, it is important to seek feedback about the safety protocols. If employees are having difficulties accomplishing their work goals while also meeting safety standards, it is likely that safety standards are being sacrificed in order to accomplish tasks efficiently. Use employee feedback to identify problem areas where safety protocols can be improved.

Please do not hesitate to contact the Firm with any questions you may have about managing remote employees.