By Damian Moos and Kandice Kim | Contributing columnists
In response to the state and local COVID-19 stay as a home-order, many employers in California switched to a remote workforce to continue working. Since the first transition, some companies have announced that some or all of their employees will continue to work remotely even after the pandemic is over.
Increased employee happiness and productivity, or reduced overheads and expenses, are some of the reasons given by employers moving to a remote workforce.
While the benefits of transitioning to a remote force can be appealing and significant, California employers must be aware of several laws that affect remote employees.
First, employers must reimburse remote employees for expenses they necessarily incur in the performance of their duties.
For example, if employees are really required to use their home Internet to work remotely, an employer must reimburse their employees for a portion of the Internet expenses they incur under California̵
As a California court explained, the law is intended to prevent an employer from getting a case by passing on its operating costs to its employees. Although a remote force can reduce the employer’s operating costs, it cannot do so by shifting those costs to its employees.
An employer who does not reimburse his employees for necessary business expenses that arise while working remotely can have major consequences.
The employer is responsible for the expenses incurred by its remote employees in fulfilling their employment duties, plus interest and legal fees. In addition, the labor commissioner may try to recover civil sanctions against an employer who does not reimburse his employees for necessary business costs.
Although the actual cost to an employer to reimburse its employees for necessarily incurred business costs may be small and manageable, the costs of defending against a class action lawsuit – if sufficiently remote employees are affected – or a private prosecutor to recover civil sanctions on Assignments of annoyed employees can significantly affect an employer’s exposure and cost.
All minutes count
Second, California employers must pay their remote employees for all hours worked. When employees work from home and / or set their own working hours, an employer may be less able to monitor and record the actual hours worked for the employees.
While the consequences of not tracking and paying an employee for a few minutes may seem (or be) relatively small in themselves, the employees concerned who take legal action have the right to recover interest and attorneys’ fees for unpaid salaries, which can significantly increase the cost of not pay an employee for all hours worked.
As with a claim for reimbursement, the possibility of a lawsuit or a PAGA action can prove to be extremely costly for an employer who does not correctly track their employees’ working hours and pays them for all hours worked.
Third, employers who use technology to monitor their remote employees may need to disclose their data collection and use methods to employees.
With employees working outside the employer’s view, some employers may need to use technology to track employees ‘working hours or productivity, monitor operations across companies’ electronic resources, or protect trade secrets and personal information.
Employers who are required to comply with the California Consumer Privacy Act (CCPA) must notify employees of any personal information collected and how such information is used. In addition, on 1 January 2021, the obligations of employers under the CCPA will be extended, unless the law is amended before then.
At present, an employer who violates CCPA’s data collection requirements may be the subject of a civil action by the Attorney General. Although CCPA includes a private right of action in certain circumstances where employees’ personal information is illegally accessed by a third party, there is currently no private right of action of an employee for an employer’s breach of data collection requirements.
However, an employee may request a court order to have the employer comply with CCPA’s disclosure requirements under California’s unfair competition laws and then seek attorney’s fees under statutes that allow the recovery of such fees in documents that result in a significant general benefit.
For companies that rely on a remote force, it is important to understand how labor and integrity laws apply to such employees. Many of the laws require a relatively simple and inexpensive adjustment, while the consequences for violations of the law can be significant.
Damian Moos is a partner at Best Best & Krieger LLP. He represents clients throughout Southern California in matters relating to business and employment disputes, intellectual property, privacy and false and misleading advertising. He can be reached at [email protected] Kandice Kim is a lawyer at Best Best & Krieger LLP which handles a number of different disputes for both public and private entities. She can be reached at [email protected]