Employment Law Implications for Remote Work

Episode Notes

Transcript

Rocky Dhir: This podcast is brought to you by Clio.

[Music]

Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host, Rocky Dhir.

Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. I want to begin today’s episode by thanking all of you who tuned in with a special shout-out to our regular listeners. This podcast is for me at least. It’s a labor of love and I’m deeply humbled and gratified whenever I hear that a topic or episode has touched or helped someone.

Today, we have a special member requested episode. Some of you have been asking about working from home and the legal issues that that arrangement entails. More specifically, there are questions about the employment law related questions surrounding remote work and working from home. And to be honest, I hadn’t given that issue much thought but upon deeper reflection, yeah, I can totally see where that might be fodder for exploration.

Now full disclosure, I work from home and my team and I have been doing so either fully or partially for about 20 years and yet I know little to nothing about the employment law nuances surrounding that arrangement. It’s pretty crazy. So today I look forward to learning something close to my heart, something I didn’t even know I should be delving into. So, thank you again to the listeners who brought this issue to the fore.

Now, to help us really get some insight into this topic, we’re going to need a proverbial big gun. Trang Tran fits that bill. He’s the name partner of the Tran Law Firm in Houston, Texas. Trang’s firm handles employment law matters on both the employer and the employee side and he’s a litigator so he knows the impact that these issues can have where it ultimately counts in a courtroom.

If you’ve been reading your Texas Bar Journal, you might also recognize Trang’s name from the January 2022 edition of the journal where he wrote a 2021 year-in review piece focusing on significant court decisions affecting employment law. So let’s get right into it. Trang Tran, welcome to the podcast.

Trang Tran: Hi Rocky.

Rocky Dhir: So, before we get into the substance of working from home and employment law, let me ask you this. Are you working from home now or are you in the office?

Trang Tran: I have a hybrid arrangement. I work from home three days a week and the rest of the time, I come into the office.

Rocky Dhir: What about your team? Is that the same thing for your office as well for the rest of the attorneys and support staff?

Trang Tran: It’s really strange. Some of my team do a hybrid work schedule like I do and some work completely from home.

Rocky Dhir: Okay, so you you’ve got some experience now with the administrative side of work from home. Have you been either in your practice or just in the way you’ve been running your firm? Are you seeing any significant issues, employment law issues that we should be thinking about when implementing these types of arrangements?

Trang Tran: I think I would best describe it as I told you so. I guess for many years, we’ve been telling employers that when an individual has a disability or medical problem that they should be permitted to work from home and we’ve been hearing a lot of reasons why it’s impossible. It’s not feasible to allow an employee to work from home. They need to come to the office and if they run out of medical leave, then it’s going to be unemployment problem. But what this past two years has proven to us is that it’s feasible. You can’t send people home if they have to work from home. They have mobility issues. And so, it demonstrate the type of accommodation that is available under the American Disability Act and it has pros and cons.

Rocky Dhir: It’s interesting because you’re talking here about sort of medical leave issues but now, it looks like at least the world as we know it is looking at this becoming a normal part of work, right? So, you’re working from home. So, yes, from the medical leave perspective, that’s kind of been an issue for a long time. What about now where it’s becoming a regular feature? It’s no longer 9 to 5 and it’s no longer clear-cut boundaries. Are you seeing that starting to make its way into employment law disputes of any kind?

Trang Tran: You hit the nail on the head when you said boundaries because when you have people working from home, they’re in different states. They may relocate to a better state or if they relocate to a different city which has different jurisdiction, different laws that may apply. So an employer that hires an employee in Texas, they end up having that same employee relocate to California and therefore subject to company to California statutes.

(00:05:09)

Same thing, Colorado, when you relocate folks to different cities and states, you have to then keep track of them, find out how long they’ve been working out of town or in that date or city and find out if different laws applies to that particular set.

Rocky Dhir: As an employer, can you not sort of mandate or have them sign something that says, if I’m a Texas employer, can I say, you’re agreeing to be bound by Texas employment law or are those questions really determined by where the employee is physically present?

Trang Tran: It’s a good question Rocky because then, you’re looking at contractual obligations versus statutory obligations. Sometimes you can’t waive statutory application of labor law. So, if you relocate to San Diego or someone from California relocates to Austin, Texas, they may think that they still have rights under California law but they may not. Texas law may apply. It depends on who makes that argument and which judge or arbitrator receives that information. It makes a decision.

Rocky Dhir: As an employer, is it possible to put that in an employment manual saying, “You must be physically located in X state or else you’re no longer eligible to be an employee here and you can be terminated”? I mean, is that something that they could do to try to control those jurisdictional issues or does that also run afoul of statutory requirements?

Trang Tran: I think that limiting employee mobility currently is legal in Texas. However, you’re going to have a practical effect and that is, I heard that there says a staffing shortage right now.

Rocky Dhir: You don’t say.

Trang Tran: No. I’ve heard about it. So if you have a problem recruiting good talent, I think it’s best not to restrict their mobility because when you have a work from home situation, why does it matter where they are located? The only thing you have to do as an employer is just have a legal department look at compliance issues to see if there’s any adjustment that needs to be done. Often times, there’s not much of a change.

Rocky Dhir: You said legal department, right? What does this do for smaller businesses that don’t have legal departments? They might be fewer than 50 employees and they’re just kind of doing their work as they come around and when legal issues arise, they’re sort of surprised by it. How do they protect themselves and what must they be doing to try to navigate these waters?

Trang Tran: Well, there’s two ways to approach it. One is using a petty contractors because then you don’t have to worry about labor law if they’re truly independent contractors. And the other if their employees do two things. One is have them check in every week to find out where they’re working from, what city and state and that way, you can use technology also to determine whether they’re working in. And once they pass that 30-day mark, start keeping an eye out.

Step 2, Google is your friend. If you see that someone’s working consistently in another state, another city, I would do the State Labor Board. So Texas Labor Board, California Labor Board. And generally, you will pull up the applicable agency that regulates labor in that particular state. They generally have a pretty good list in description of applicable laws.

Rocky Dhir: Interesting. Okay, so I think you’ve kind of touched on this a little bit but if I’m an employer and if I’ve got employees that either partially or fully are working from home, either the hybrid or the full-time arrangement, what are some of the questions that I should be asking? And let’s maybe list those out so that way, those employers can kind of have those as bullet points. What should they have up on their sticky notes, on their monitors to kind of help them through this?

Trang Tran: I think the first thing is you have to get an inventory of their work environment. What type of equipment, what type of privacy precautions do they have in place? Are they working in a shared workspace where a spouse or other members of the family, whoever they live with, have access to their computers can listen in, can observe the work in process? Because if you fail to do that, you may waive your defenses in a trade secret claim.

Rocky Dhir: Oh interesting. Okay.

Trang Tran: Yeah. Number two is, you basically have to ask them about what the preference work time and hours are and get an honest survey of when these employees like to work, what days of the week because you can’t stop them from working and you have to account for every minute and make sure they’re compensated if they’re nonexempt.

(00:10:03)

And so, if someone says I like to work evenings, you have to make some adjustments but you got to allocate the hours. If you’re trying to regulate labor costs, determine how many hours that employee survey shows. If you have a bunch of work folks that are working from home, that are working Saturdays and Sunday, that means that you’re going to have to allocate resources, dedicated resources, or support staff to help them during the weekend so it may increase your cost.

So I would say a good survey of their preference, preferred hours of working days are important. And last of all, I think you have to make sure that they have a very firm understanding of your computer protocol, internet usage. Make sure that they’re not working from home on their personal computers which may be compromised. Make sure they understand that they have to use basically good offset, operational security. Meaning, maybe use a VPN, don’t do personal browsing on your computer, don’t click weird files. Things that you normally have to do in the office, you have to then push that out to the workers when they’re working from home.

Rocky Dhir: So, we need to take a quick commercial break but when we come back, we need to maybe talk about what tools and employer has to kind of regulate those issues because you just said, you can’t stop an employee from working but then how do you how do you enforce these rules when they’re kind of out on their own at home. So, let’s talk about that after we hear a few words from our sponsors. We’ll be right back.

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Okay, we are back with Trang Tran and the question we have after we left off last time was how or even whether an employer can regulate when an employee works, what kind of equipment they’re using and whether they’re in compliance with company policies when they choose to work and possibly work overtime and incur additional costs if they are nonexempt from waging our issues? So Trang, let’s maybe dive into that. What tools does an employer have at its disposal?

Trang Tran: Well Rocky, I’ll tell you in my observation what tools are available but these are not my preference.

Rocky Dhir: Okay.

Trang Tran: I wouldn’t even recommend that they be used because I have personal feelings about whether or not it’s proper. Because I respect individual’s privacy.

Rocky Dhir: Sure.

Trang Tran: But here are the tools. Employers will use keylogging software to see if employees are typing or using their mouse. They are using surveillance camera software where they would take snapshots of their employees. While they’re working on a company computer every 15 minutes, you can change the setting to 10 but generally, I’ve seen it 15 at least once an hour to take a snapshot and then record for a few minutes what that employee is doing.

And the other way to do it, is you maintain communication with them through a communication platform such as Slack or Microsoft Teams. In addition, you can use Zoom conference calls, video calls so that you can talk to the individuals and that’s one way people are keeping tabs of the employees getting a feel their vibe, their energy level and whether or not they’re working because they can see you on your webcam.

Rocky Dhir: You talked a while ago about how and I don’t think it’s news to anybody that there are staffing shortages, not just in the service industry, but even in office environments. Do you think employment law is going to change and adapt? Do you the laws are going to, at some point, bend to some degree to make it more amenable for employees to work from home and for employers to kind of regulate their activities?

(00:15:00)

And here’s kind of what I’m getting at is so you talked about the wage and hour issue, right? An employee chooses to start working and they work more than their allotted 40 hours and now suddenly, the employer could be on the hook for overtime and that could occur, especially if they’re nonexempt from these wage and hour type claims. So do you think employment law is going to now have to start changing to say all right, in that scenario, the employee only gets overtime if it was sanctioned by the employer or there’s certain things that have to be done before an employee can be eligible for wage an hour? Do you think that’s where it’s going to go or do you see this heading in a different direction?

Trang Tran: Rocky, I think the law doesn’t need to change. The laws are great right now. The statutes are written the way they are and some of these statutes have been on the books for over 15, 20 years. They don’t need to be changed but what happens is, the laws are interpreted by judges through published opinion every month every year that piles up into a body of law of interpretation of the statute. That’s where I think you can add the human dynamics, common sense where judges can look at it and make an interpretation.

And I’ll give you an example. Some of these labor statute only applies to — they require a minimum number of employees, say 50 and you have to measure whether or not they employed 50 employees in one location. Well, when you have a dispersed workforce and everyone’s working from home, you can’t count. You can’t do a headcount at the headquarter or the office. So then, some judge is going to have to decide if some and employees work from home office is considered part of the company’s footprint for a headcount purpose. And if they don’t count that, they count that the individual working from home is not — they don’t meet the headcount for the application of the statute then the statute doesn’t apply. A judge can make that decision and if more judges follow that interpretation, then you have an established body of law. So I could see that working.

Rocky Dhir: That could even have issues outside of the employment law context for issues like personal jurisdiction over an employer, right? Because if you count the — I can that as being a double-edged sword. If you count that employee as being stationed at the headquarters, that means the headquarters now has more employees and they might now be subject to these statutes that have minimum employee requirements. On the other hand, if you say, “No, these are dispersed employees all over the country,” now technically, the company is doing business and all these other jurisdictions and they could arguably or potentially be haled into court in those other jurisdictions.

Trang Tran: That’s right. And it works both ways Rocky because I love this discussion because it’s exciting because if you have someone managing a workforce from let’s say a San Diego, California, I keep mentioning it because –.

Rocky Dhir: You love San Diego. I was going to say, I think I know where this is headed. Trang is going to be in San Diego.

Trang Tran: It’s so hot here in Texas. San Diego is a big break and the views can’t be better. But let’s say you have a dispersed workforce across the country and you’re managing the workforce from San Diego, well if this is where the lawsuit may be filed, the claim may be filed if there’s an employment problem. It could be in those cities or it could be in San Diego. The jurisdiction would be where the management is running the whole nationwide operation. So yeah, it could be all over the place.

Rocky Dhir: Let’s maybe talk for a second because I don’t want to forget Title 7 especially in the context of sexual harassment claims. I don’t know if you’ve seen any of this yet but it’d be interesting to kind of get a glimpse on what Title 7 sexual harassment claims are going to look like in the work from home context. People are all remote, is it still possible to be sexually harassed? I’m assuming the answer is yes but then, what does that look like and what will courts and judges be looking for to determine if an actual claim existed?

Trang Tran: This may be a little sensitive to some people but it’s still possible to be sexually harassed even if the other person is not physically there.

Rocky Dhir: Okay.

Trang Tran: So some folks are thinking very traditional sexual harassment. You got to have a man and a woman or a man and a man present in one place and the other person is creating a hostile work environment. But what I’ve seen over the years is that much of these harassment is a combination but oftentimes, the complaints are about inappropriate communication by text messaging. Soon, you’re going to see cases filed through inappropriate emails and I think that’s pretty common but you’re going to see inappropriate communication through Steam messages, Slack or even on video calls, Zoom calls or anything like that.

(00:20:05)

Because if someone is trying to hit on another person or is trying to exercise dominion over someone sexually, don’t do it through any means of communication. It makes the lawyers’ job a lot easier if it’s in a medium that can be recorded and can be reproduced so we can watch it or read it later on.

Rocky Dhir: It’s going to be interesting too I imagine that, especially over text message or over team chats, there’s a use of emojis, right? And so, a lot of times it’s not actual words of, “Hey, do you want to go do such and such?” or “Hey, will you go out with me?” It might be an emoji that could be interpreted in a multitude of ways. Have you seen any cases like that or have you come across those?

Trang Tran: Just had a hearing. I just filed my closing statement about whether or not an emoji was sent on purpose or it was intentional and an emoji is graphic in nature. You have to be careful with these aftermarket third-party emojis. You may be pressing the button on your phone and it’ll pop up something inappropriate because they’re using AI or algorithm to try to interpret what you’re trying to say. So, you may be giving someone the middle finger by accident or something along the same genre and it could be much more graphic.

Rocky Dhir: Wow, okay. What about race discrimination claims? Something like pre-pandemic. There was a lot of talk about implicit bias and trying to eliminate implicit bias so that you treat people more fairly. How does that change in a remote setting where not everybody is sitting in the same room? As an employer, how do you guard yourself and as an employee, how do you protect your rights to make sure you’re not subjected to some form of implicit bias. Presumably in an office, it’s a little bit easier to tell the interpersonal relationships but when you’re remote, I imagine that changes. I don’t know if you agree or disagree.

Trang Tran: Oh, I agree because most of the interviews that’s been conducted over the past year and a half when it comes to implicit bias, it’s whether or not you’re factoring in some personal bias against an individual with the protected category is you’re conducting video interviews a potential job candidates. It’s very hard to deny the fact that you know what they look and sound like and you are also observing their surrounding unless you’re using a background which I recommend for job interviews because you don’t want to give cues on your ethnicity or your religious preferences by having a background. Maybe you have a cross or you have an altar or something like that in the background and you’re communicating that information subconsciously to your potential employer and they’re looking at it or you have a potential employer talking to an employee on video chat and they rarely visit the employee at home in a regular setting or through Zoom or video conference.

You’re taking in information that you’re not supposed to in a regular work environment. You’re observing their interaction with their family members or even what their family members or kids or what their personal life is like and you’re making judgment calls and was seeing some oops incident, some viral stories about someone giving an interview of their hotel or their home and some viewer will pin in on something that was left accidentally in view of the camera. And so, employers are making the same judgment call so when it comes to implicit bias, you might be making judgment call on someone based on what you’re seeing in their homes and those may be indication or associated with protected characteristics such as your religion or your ethnicity.

Rocky Dhir: I mentioned that be interesting too especially when it comes to unemployment claims, whether somebody was terminated for cause or not terminated for cause based on what their surroundings look like when they’re on a Zoom call, right? I mean, were they doing something that was “unprofessional and in violation of company standards?” So, how do employees and employers kind of navigate that? Do they all just use backgrounds? Do they use sort of very plain backgrounds? Is there going to have to be some room made within the law for slip-ups like that to occur without it creating issues for either party? I mean, how do you see that playing out?

Trang Tran: I see it playing out with employers coming out with more updated internet and personal conduct rules in their handbook and they have to if they’re going to terminate an employee for a violation of workplace conduct, articulate things that are prohibited.

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So, if they’re going to say we’re not going to allow, we’re going to terminate anyone that show displaced nudity or inappropriate images, well then, you have to identify at your home during video calls also so don’t have that business on a top and none on the bottom. So if you’re going to say you got to wear appropriate clothing then yeah, just articulate that but if someone said no one told me I had to wear shorts, I can’t wear shorts at work, well articulate that in your policy.

And TWC will only fire someone while he justify, deny someone unemployment benefits if they violate a work policy but they often rely on whether or not that policy was communicated verbally or in writing. It was never articulated because no one ever sat down and thought about it then you can’t use it to deny an employee unemployment benefits.

Rocky Dhir: Sure. Are you seeing a lot of employers now going back and revising their employee handbooks to address these employment law issues or are employers kind of still relying on old manuals and just kind of hoping that they work out okay?

Trang Tran: Rocky, surprisingly, no employers are doing it. I haven’t seen anyone issued updated employment policies for work from home and I deal with a lot of large companies, medium-sized too. You expect them to have updated internet policy specifically addressing work from home and I haven’t seen any and I think that’s a problem. Everyone that’s justifying or explaining why they terminate or discipline someone, when you look at our policy, it’s like three or four years old and it’s all outdated.

Rocky Dhir: Why are they not updating? Is it because they’re thinking that COVID will pass and it’s all going to go back to pre COVID working conditions or it’s just they just haven’t gotten around to it? Do you have any insights on that?

Trang Tran: In a large nationwide or international company, there’s a committee approach to upgrade any employee handbook. You just can’t flex and add things to it. So it’s generally better to make things really broad so that you can apply to most situation. Smaller companies are not doing it because they just lack the resources or the procrastinating. They’d rather deal with the emergency items or short-term problems. That’s something that may or may not happen. The only problem I see with this situation is that we are not going back to the office like before. I think it’s going to be a hybrid schedule. I think that they’re going to be positions where people are permanently hired directing to work from homes positions.

Rocky Dhir: We are running short on time so I want to be respectful of making sure that we covered all the issues you think we need to cover. Is there anything that you think employers or employees need to kind of be cognizant of as they move forward into this brave new world of staying at home and not going out anywhere as they work? Is there any kind of last-minute thoughts on what people should be thinking about?

Trang Tran: I think that hours worked is really important because it’s too easy to have days merge together when you’re working from home and it seems like your office hours are getting longer and longer because you never leave the office because you live at home where your office is and so, people are, unless they put some structure in place, their employees are going to work longer hours, they’re going to get burned out and they’re going to have a retention problem or the employee will project employment issue because they’re burned out or fatigued.

And so, don’t overwork yourself and don’t allow your staff or your employees to overwork themselves too because work from home is supposed to be an improvement on your life. It allows you freedom to travel, freedom to flex your hours, work when you want, how many days you want as long as you get the work done. But if you don’t put some limit to that, you’re going to be working too much and too many hours and you’re not going to enjoy the benefits of work from home. You can be a digital nomad and work from anywhere and improve your life and improve the time that you have with your families and some personal time.

Rocky Dhir: So, given that, do you think it’s possible that moving forward, employers don’t put work time restrictions they give tasks and say get this done and then once you’re done with that, we’ll talk about what you do next. And so, when you said just get your work done, do you think that’s going to be the new structure? It’s, get your work done, here’s your work, whether you work 40 hours this week and 40 hours next week or whether you work 90 hours this week and no hours next week, just make sure you get your work done.

(00:30:02)

Is that going to be a viable arrangement moving forward or are there going to be issues for that?

Trang Tran: I believe what you’re saying is correct and it’s a concept called asynchronous communication and also responsibility. Asynchronous communication means my virtual assistant working at night in Asia will leave a message for me, leave the work for me and I log in the next day. I read the messages and I respond back. In order to do that, you have to have everyone to be responsible and personally accountable to get the work done but also to sit down and figure out what the process is.

Often times, people have all the employees in the office because they’re lazy. They’re lazy creating a system in place where you can have asynchronous communication and project planning and project completion and collaboration in different time zone. And so, you’re putting everyone in the office just so you can monitor. You count attendance. You’re making sure they’re there and you can pay them a wage but are they actually getting any work done? Are they just moving their pencil and mouse around until they’re watching the clock?

Things could be better but we have the technology now where asynchronous communicate communication allows you to first will send a letter or send an email and someone could read it the next day and respond. You have text messages, that was a little better but now you have the ability to send messages in a chat and read the history of everything that your team members have talked about that day and once you clock in, you can get caught up and you can collaborate. And don’t forget, you can record videos of yourself talking so that you don’t burn everybody else by just reading messages all day, hundreds of messages. Some things are better said on a video than through a typed message.

Rocky Dhir: Sure. Well, with that, I do see that we’re out of time and after this discussion, I think I’m going to go binge watch The Office because that’s just put me in an office kind of mood to watch people do nothing all day. It’s going to be a lot of fun. But Trang, I want to thank you so much for taking the time to join us and for sharing your insights. It’s been fascinating, thank you.

Trang Tran: My pleasure.

Rocky Dhir: And of course, I want to thank you, the listeners, for tuning in and encourage you to stay safe and be well and just like the listeners who tuned in to this podcast and told us to get an issue on employment law, if you’ve got an issue you would like us to explore, please let us know. We are all ears and we want to hear from you. And if you like what you heard today, please rate and review us on Apple Podcast, Google Podcast or your favorite podcast app and until next time, remember, life’s a journey folks. I’m Rocky Dhir signing off.

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Podcast transcription by Tech-Synergy.com

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