The Remote Reality Check: What Employers Need To Know As Remote Work Rises

COVID-19 presented a radical shift in workplace culture, forcing companies to adapt almost overnight as millions of employees transitioned to remote work to keep operations running. As the world emerged from the pandemic, companies embraced hybrid schedules, others required returning to the office, while others adopted a "work from anywhere" philosophy. Today, 22% of the U.S. workforce, approximately over 32 million people, work remotely. With a worker's location, industry and employer's remote work policy adapting to this new transformation, employers should be cognizant of this culture shift and, as such, ensure their HR culture adapts to it.

Here's how businesses should clarify their remote work agreements to ensure they remain enforceable and protect the business, all behind the screen:

Common Pitfalls When Drafting Remote Agreements and Policies

When considering or updating remote and hybrid agreements and policies, employers must move beyond what has been a traditional office environment. As more than 20% of the country does not work in cubicles at the office, but rather their home, one of the biggest pitfalls is assuming that the laws of the company's headquarters apply to all remote workers. Laws differ from state to state, so employers may be subject to the labor, tax and benefit laws in each state or country where that employee is physically located. Overlooking these differences can lead to potential fines, audits and litigation.

Misclassification of employees is another risk. A remote worker is not automatically an independent contractor simply because they work from home or another state. Regulators will look closely at factors of the actual working relationship, such as the control over schedule, direction of work and providing equipment.

For non-exempt, or hourly, employees recordkeeping becomes even more important. Employers must accurately track working hours, lunch breaks, reimbursements and overtime, all complying with the applicable state laws. Additionally, even work-from-home injuries may result in worker's compensation claims, so employers need procedures for reporting such injuries.

Ensuring Confidentiality and Data Security

Remote work introduces unique risks to data security that are otherwise uncommon in traditional work environments. Employers should develop clearly defined agreements that combine policies, technology and employee training. These agreements should have explicit policies, such as what employees can and cannot do with company resources, how data must be stored and what is considered sensitive and confidential, especially on personal devices.

Technical safeguards matter just as much. Multifactor authentication, access based on job duties or seniority, and periodic access reviews help ensure that only the right employees see the right information. For example, a Virtual Private Network (VPN) creates an encrypted connection that masks the user's IP address, protecting sensitive online activity and data. Depending on flexibility, this is especially relevant when employees can work outside of their home, like a coffee shop, and use unsecured public Wi-Fi.

Finally, employers should conduct regular cybersecurity training to reduce the modern risks of phishing and scamming so employees understand securing devices, shredding sensitive papers and reporting any suspicious incidents immediately.

Intellectual Property Protection For Remote Staff

With remote work blurring physical boundaries, given your "office" is wherever the employee opens their laptop, an employment agreement should clearly state that all work created within the scope of employment belongs to the employer, including both patentable and non-patentable materials (such as documents, designs, processes, data, training materials, code, etc.).

Other aspects of a strong agreement include:

• A "work made for hire" clause
• An Intellectual Property (IP) assignment clause
• Requirements to promptly disclose inventions or potentially protectable creations
• Clear definitions of "company resources" and "confidential information"

Noted above with data security, employees should agree to follow security measures and, within legal limits, allow employer access to their devices, accounts and network activity. Upon separation, the employee must return and delete all company materials, including from any personal devices, and agree not to use any company confidential information with future employers.

Managing Work Disputes From Home

Remote work expands a company's footprint, meaning disputes can arise from anywhere. Employers should prevent disputes proactively through policies and contractual clauses.

First, require employees to attempt internal dispute resolution measures before escalating matters. HR or a neutral internal mediator often resolves issues early, reducing legal exposure.

Second, include clear choice of law or forum selection clauses to specify which state's laws govern employment and where a lawsuit must be filed, preventing employers from being involved in lawsuits in every jurisdiction where remote workers live. However, because some states (such as California) can invalidate these clauses if they disadvantage employees, include a clause that states that if the chosen forum is invalidated, the remaining terms still apply.

Employers may also incorporate mediation or arbitration clauses. Arbitration keeps disputes private and may prevent class actions, making it less costly and resolving the dispute faster.

Adapting Workplace Safety Obligations For Remote Teams

Since workplace safety is no longer confined to the walls of an office, employers owe a duty of care to their employees even from home that is just as clear and easy for in-office staff. Employers should conduct remote-work risk assessments to evaluate ergonomic issues, potential hazards to avoid injuries and mental health considerations. There should be training on proper workstation setup, safe work practices and injury reporting procedures.

Many employers offer reimbursement for ergonomic equipment, such as adjustable chairs and desks. Regular check-ins via instant messaging, video calls or scheduled touch bases help maintain engagement to foster social connection with in-office teams so remote employees feel connected and supported rather than isolated.

Emerging Trends And Legal Developments in Remote Work

Remote work continues to quickly evolve, and so do the laws that govern it. Employers should monitor:

• The rise of hybrid work options
• Global remote work and cross-border hiring
• Tax complexities when hiring employees in different states or countries
• Pay equity issues resulting from location-based compensation
• ADA (Americans with Disabilities Act) compliance when remote work is requested as a reasonable accommodation
• Legal risks associated with return-to-office mandates, and legal issues surrounding taxation, pay equity and ADA compliance. Employers should focus on updating agreements to reflect remote work realities, data security and complying with the increasing number of state and local laws.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.