Here's the reality. Both of these companies started
their work-at-home programs with established criteria to judge the programs'
efficacy. We've not heard a single word about whether employees met those
objectives.
But even more significantly, no one is talking about the
cost and risk to employers who have employees working unmonitored at
home. Across the country, the presumption for tax purposes is that
employees are non-exempt employees; in other words, that employees are what
most of us commonly refer to as "hourly" employees, subject to wage
and hour laws, minimum wage requirements, and statutorily required breaks and
meal periods, among other things.
In California, for example, if an employee during a working
day doesn't take his/her two 15-minute breaks and lunch break, then he/she can
then turn around and file a claim with the Department of Labor for all of that
time as overtime, which also then carries substantial penalties to the
employer. The onus is on the employer to ensure these employees take
these breaks. I have sat in DOL meetings and hearings with employers
where the best we can try to do is mitigate these burdensome penalties, because
unfortunately, despite repeated documentation in the personnel file and manual
that the employee was advised to take his/her breaks, unless the employer takes
active steps to force the breaks and keeps impeccable documentation, the
employee's time records of time allegedly actually worked (which not
surprisingly often do not match their time cards) trump all other evidence.
How does an employer document breaks effectively when the
employee is at home? The obvious answer is they cannot.
Also, California is one of only four states in the
US that require employees to be paid overtime for working more than 8 hours in a
single day, regardless of how many hours are worked in a work-week. How
does an employer effectively monitor that time if the employee is at home, and
ensure the employer is not unwittingly carrying an untapped liability
risk? The answer to this question involves substantial staff time just to monitor staff's compliance with wage and hour laws, like collecting reports of computer usage, hours spent online and logged into the company's database, etc. All of these issues create an HR nightmare for the employer.
The solution? Bring everybody back into the office,
where the employer can service the edicts of the nanny-state and ensure
employees are taking their statutorily required breaks, lunch periods, and not
working over eight hours in one day.
If employees want more freedom in the workplace, then
employees need to talk to their state legislators about the overly-regulated
morass that has been created, and return personal responsibility to the
workplace. This would allow working families flexibility in their daily
schedules, for example, the possibility of working four-10's; all options
that are now essentially off the table, but would support stronger families and
greater creativity and flexibility in the workplace and support a more vibrant
economy.
If you are in favor of greater flexibility in the workplace, then while you're on one of those statutorily required breaks, drop an email or letter to your Assembly or Senate representative. The people of this great State have the power to get things done. Harness it.
Nothing in this blog is
intended to create an attorney-client relationship. This article is intended to provide a general
overview of the current status of the law for informational purposes only, and
is not intended to constitute, or serve as a substitute for, a professional
legal consultation. Laws change every
day; please consult an attorney regarding the current status of the law, and
how the law affects your specific circumstances. Thank you.
