Overview on Remote Work Agreements
Employers are increasingly allowing employees to work remotely, whether it is on a permanent basis or from time to time as needed. A flexible work schedule has always been used as a recruitment and retention tool and is increasingly being used as an employee retention tool. Enabling employees to work remotely can also reduce the size of physical office space that an employer needs to lease or own, reducing real property costs.
However, there are issues that employers should consider before making remote work available to employees, whether it is full-time or part-time remote work .
These issues are not unique to remote work arrangements, but they can be more complicated in the context of remote work arrangements. If an employer already has policies that address these issues either indirectly or directly, they should revisit those policies to see if they need to be amended for the purpose of remote work arrangements.
Given that remote work arrangements are becoming more commonplace, employers need policies and tools to efficiently manage the issues and day-to-day concerns that arise. An effective remote work agreement is an important tool in that regard.
Key Components of a Remote Work Agreement
Regardless of the format of a remote work agreement, every one should include a few essential elements. Keeping in mind that issues can arise even when both the employer and employee are making good faith efforts to work together, the following components can help avoid confusion between the parties and minimize risk for the company.
- Description of employee’s duties and responsibilities. Include an overview of the employee’s expected contribution to the organization, both generally and specifically.
- Recordkeeping. Identify both the person responsible for collecting the records and the frequency in which they will be submitted.
- Hours of work. Expand on or reiterate your company’s general policies with regard to work hours.
- Availability. Describe expectations regarding hours of availability and responsiveness.
- Leave of absence. The agreement should outline procedures to request a leave of absence.
- Termination of agreement. Include how either party can terminate the agreement.
By ensuring your employees have an accurate understanding of your work expectations, your staffing needs, and standards for communication, you can minimize the confusion that often accompanies remote work and reduce the risk that can arise from miscommunication.
Considerations on Legal Aspects
The creation of an enforceable and defensible remote work policy requires answers to the following questions: Is the remote work position exempt or non-exempt? This status is critical because it drives all other considerations. The duties must be clearly enumerated and tracked. If a position is exempt, the most important consideration is the duties performed by the individual, not where the work is performed. Pay is largely irrelevant. Employers must determine what must be done for the position to satisfy the applicable exemption. An employer cannot conclude that a position is non-exempt simply because the employee performs the job from home. The employee must satisfaction the regulatory requirements regarding duties. Electronic data collection systems such as time or activity sheets as well as electronic communications can facilitate the collection and verification of the data. If the employee classified as non-exempt, the employer must evaluate whether to classify the position as hourly or salary. If the latter, the compensation must satisfy any state minimum salary requirements which may exceed the federal requirements. At the time of hiring, the employer must inform the employee that the position is either hourly or salary. The contract should expressly identify the status of the position. It should also require that any and all work performed, including preliminary or incidental work, must be performed in compliance with the employer’s policies. Employers should also take into account any practical or operational re Plaintiff v. WECOS GROUP LLC v. Papka of the requirement that they conduct at least one satellite in person meeting each week for the remote employees. While this requirement may be impracticable in some circumstances, it is critical to ensure not just that work is performed, but also that employees have opportunities to offer input and suggestions regarding practice. Regular satellite interactions also facilitate the development of practice synergy with the employees. The employee must be required to recognize that by signing the remote work agreement the employee agrees that he or she does not need to commute to work and agrees to be available for work in a prompt and timely manner. The employer may also specifcy the timeframes when remote employees will be most reachable, such as during core office hours, and other times the employee will be off the clock for personal or family reasons.
Technology and Security Considerations
Employers are encouraged to identify the technology to be utilized by the employee when working remotely, which could include an employer-owned computer or laptop, a secure remote connection to the employer’s systems, a VPN to allow the employee to remotely connect to their in-office systems, and other platforms or applications that may be used to ensure the employee can securely complete their work tasks. These should be identified in detail in the remote work agreement. In some cases, employers may not want employees to utilize their personal devices for work purposes, due to security concerns. This may even be the case if an employee allows another household member to use those devices for personal purposes. Employers should also address security protocols intended to protect both the employer and the remote employee’s privacy and confidentiality. For example, the remote work agreement may include minimum security requirements employees must meet prior to being granted permission to work remotely or in a hybrid arrangement. Examples could include: The agreement may also prohibit remote or hybrid work assignments if the employee does not have a secure place to store or work on their devices. In addition, the agreement can require employees to manage their own workspace if they have children or other household members present while working at home. It can also outline specific security-related tasks, such as logging off devices after use, locking or shutting down computers when leaving the work area, and password protecting devices. Other tasks may include taking steps to secure the remote work environment by ensuring physical security in their workspace, such as safeguarding equipment from potential damage or theft, considering whether confidential information is visible to household members or guests, and posting a sign outside the workspace if present to limit distractions and ensure confidentiality and privacy. Other potential security measures covered by agreements could include prohibiting the printing of papers or documents or discarding them when not in use to protect against inadvertent disclosure of confidential company information and the use of shredders when disposing of such papers. Additionally, remote work agreements may require the reporting of any potential data breaches, loss or theft of equipment, or phishing attempts to the relevant company contact person.
Performance Measurement and Responsibility
Remote employees must be held accountable for their work. Therefore, it is a good idea to have performance metrics related to their job duties that can be tracked online. If their duties can be tracked with specific, quantifiable goals, accountability is easy. If the employee has discretion with their work, (i.e. proofreading or editing) the employee should have opportunities to demonstrate their work ethics and work quality. For example, if proofreaders are expected to check X amount of pages per day or complete certain projects per pay-period, the employee can be evaluated based on these measurable goals. Likewise, if the employee is expected to respond to emails within a certain amount of time and you can easily verify that they are doing so, you can base their accountability on these metrics.
Objectives and goals can also be used to measure and manage remote employees . Remote employees can be given quarterly objectives that are reviewed with their direct supervisor. The objective can be correlated to a larger goal, such as a total portfolio, company sales or compliance objective. The employee can meet or exceed the objective or be reviewed using a rating system that can correlate to level of success. This rating system should be regularly communicated with the employee based on the employee’s discretion and use of the system.
These procedures, in addition to more traditional evaluations can increase overall performance of remote employees. Further, remote employees should understand how their work impacts the organization. Their role should be made clear in the context of the business goals of the organization as a whole.
Such measures can ensure that the employee is meeting expectations. Determining ahead of time how you will manage and evaluate your remote employees can help you avoid any uncomfortable conversations.
Sample Remote Work Agreement
Below is a basic template to incorporate into your Remote Work Agreement. As noted above, the Agreement should be tailored to your workforce and your business. This sample will give you an idea of what you need to include in your remote work agreement to best protect your business, but again, you should always consult with legal counsel when drafting an agreement.
Employee Name:
Business Name:
Effective Date:
- Purpose. The Company and Employee acknowledge that a remote work arrangement will be beneficial to the Company and Employee as set forth in this Agreement.
- Responsibilities. The Company agrees to provide the Employee with the following equipment or supplies that are necessary to complete the Employee’s job duties: [List items that must be provided by the Company.]
- Employee Expectations. The Employee agrees to be available to communicate with Company representatives whilst working remotely. The Employee agrees to respond to all messages and/or calls received through Company provided software or any other method of communication within a reasonable time frame to ensure minimal disruption to the Employee’s workflow. The Employee agrees to update the Employee’s calendar and notify the Employees Company representative of any potential conflicts with work hours. The Employee agrees to report to the office [number of times] per week. The Employee agrees that the purpose of the Agreement is not to accommodate a second job or for any other purpose not set forth herein. The Employee agrees to provide a list of all anticipated times that the Employee will not be available the following week every Friday. The Employee understands that failure to comply with this obligation will be considered a potentially serious infraction and may be subject to disciplinary action, up to and including termination. The Employee understands that all Company policies apply without regard to where the Employee is working from, including but not limited to the AntiSexual Harassment Policy and Drug and Alcohol Policy. The Employee agrees to read all policies and procedures and acknowledges that the Employee understands the contents of the policies and procedures. The Employee understands that the Employee is expected to follow all policies and procedures and understands that the Employee’s failure to do so may result in disciplinary action, up to and including termination.
Pitfalls to Avoid
Remote work is a benefit which employees highly value, and even in the midst of the current employment market, employers are still looking for ways to remain competitive. Accordingly, many policies on remote work have come and gone, as the current office culture has shifted to accommodate remote work. However, some of these policies have been drafted to be so broad that they do not provide sufficient guidance in the event a conflict arises. Relying on general guidelines increases the risk that those guidelines cannot be sufficiently enforced, and ultimately results in excessive litigation to establish legal precedent. Keep in mind the primary purpose of the remote work agreement, especially with employees who have not performed remote work for the employer before: to keep everyone on the same page with work expectations. When drafting these agreements, keep this in mind, and avoid generalities on issues such as hours of work, leave or time off, and equipment that the employee will use, just to name a few. Keep in mind also that this agreement is a critical resource, and should not only memorialize exactly what you want the agreement to memorialize, but should also give you the resources needed to enforce the agreement in the event a conflict arises. Avoiding the common pitfalls requires forethought and time.
Going Forward
The landscape of work has changed dramatically, and it continues to do so. Organizations need to adapt to meet the challenges and opportunities in this evolving environment. Having a robust remote work agreement can benefit organizations.
An organization that desires to implement a formalized remote work program is best served by consulting with counsel for developing a sample remote work agreement. Your organization’s unique business needs will help shape what makes sense for your organization . Such an agreement will provide clarity around expectations and responsibilities and will help your organization manage the kind of risk inherent in this way of doing business.
This is a very fluid area where developments are continuing to emerge. This paper is intended only to be a starting point and we encourage you to consult with an employment lawyer to discuss how to develop, implement and operationalize a remote work agreement.