Legal Questions For The New Working World
Are you aware of your remote work policies? Remote work was already expanding, but since the COVID pandemic, more workers than ever are skipping the office and commuting down the hall to a home office. A recent Gallup poll found that nearly half of all employees now work from home—and as many as two-thirds of information workers. Or maybe to their living room sofas. Working from home can simplify a lot of things — you don’t have to work a commute into your schedule, it’s much easier to accommodate sick kids and other family commitments, and “work clothes” are a thing of the past.
But remote work can complicate things when you have a problem with your co-workers or employer. It may be hard to know what protections you have. What laws apply to you, if you work in one state but your employer is in another state (or several states)? How are remote work policies applicable to you?
Federal Workplace Law
Overarching Standards and Practices
Federal workplace laws always apply to you, as long as you’re working in the U.S. (or outside the U.S., if you’re a U.S. citizen working for a U.S.-controlled company). Some federal workplace laws, like the Occupational Safety and Health Act and the Fair Labor Standards Act, are applicable to all employers. But many apply only to employers who have a minimum number of employees — ranging from 15 to 50 employees.
Generally, these floors are per-employer, not per-worksite (what the U.S. Department of Labor calls an “establishment”). So if your employer has more than 15 employees, regardless of where they’re located, you’re protected from discrimination on the basis of race, color, religion, sex, national origin, or disability.
The FMLA presents a special challenge: it requires that the employer must have 50 employees within 75 miles of the employee’s worksite. At first glance, that would seem to create problems for remote employees — some employers have interpreted “worksite” to mean where the work gets done. So every remote employee constitutes a worksite of one.
But the regulations that govern the enforcement of the FMLA define “worksite” in a very particular way: “An employee’s worksite under FMLA will ordinarily be the site the employee reports to or, if none, from which the employee’s work is assigned.” 29 CFR § 825.111(a). For salespeople and others who do not have a fixed worksite, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.” 29 CFR § 825.111(a)(2). In other words, the worksite, under FMLA, is never the employee’s residence, even if that’s where the work gets done — rather, it’s the place the work comes from.
State Workplace Laws
Protections and Rules for Employees
Determining which state laws apply is a little bit trickier. Generally, the employer must follow the state laws where the employee does the work.
The employee is protected by his home state’s rules regarding unemployment insurance and worker’s compensation. A worker who is laid off or hurt on the job will file for unemployment or workers comp in his home state. Other state-specific rules may also apply to an out-of-state employer of a remote worker. For instance, some states require that unused paid time off (PTO) always be paid out at termination; others allow employees to waive that right. Similarly, most states — but not all — do not allow employers to make direct deposit mandatory.
The employee is also protected by state laws that supplement or expand on federal protections. For instance, many states, including North Carolina, have their own safety and health regulations and reporting requirements, as well as minimum wage requirements, data privacy laws, and paid sick leave requirements.
That said, some state laws apply to employers within the state’s borders, even if the employees are elsewhere. And some courts have held that their state’s discrimination law applies even though the employee resided elsewhere. For instance, in Rinsky v. Cushman & Wakefield