By Damian Moos and Kandice Kim | Contribute to the columnists
In response to state and local COVID-19 stay at home orders passed, many employers in California have switched to a remote worker to continue operating. Since that initial transition, some companies have announced that some or all of their employees will continue remotely, even after the pandemic is over.
Increasing employee happiness and productivity, as well as reduced overhead and expenses, are some of the reasons cited by employers moving to a remote worker.
While the benefits of transitioning to a remote worker may be attractive and significant, employers in California need to be aware of various laws that affect remote workers.
First, employers must reimburse employees for expenses they incur in connection with the performance of their duties.
For example, if employees are actually required to use their Internet from home to work remotely, then an employer must reimburse their employees for a portion of the Internet expense they have under California Work Code Section 2802. The same applies to personal phones of employees as landlines as employees they need to use in connection with their jobs.
As one California court has explained, the law is intended to prevent an employer from receiving a windfall by passing on its operating costs to its employees. That is, although a remote employee can reduce an employer’s operating costs, it cannot do so by shifting these costs to its employees.
An employer who does not reimburse his employees for necessary business expenses incurred while working remotely can have significant consequences.
The employer is liable for all expenses incurred by its remote employees to perform their duty, plus interest and legal fees. In addition, the Labor Commissioner can try to recover civil fines against an employer who does not reimburse his employees for necessary business expenses.
While the actual costs for an employer to reimburse its employees for necessary business expenses may be small and manageable, the costs of defending against a class action lawsuit – if enough employees are remotely affected – are like a lawsuit for private attorneys to recovering civil fines on behalf of grieving employees could greatly affect an employer’s exposure and expenses.
Every minute counts
Second, California employers must pay their remote workers for all hours worked. When employees work from home and / or set their own working hours, an employer may be less able to control and record the actual time spent by those employees.
While the consequences of failing an employee for a few minutes may not seem (or be) relatively small, affected employees who take legal action may be entitled to pay interest and legal fees for unpaid wages, whatever the cost of not paying an employee for any working time.
Moreover, as with a claim for compensation, the possibility of a class action lawsuit or a PAGA action can be extremely costly for an employer who fails to properly track the working hours of his employees and pay them for all. working time.
Data collection
Third, employers who use technology to remotely monitor their employees may need to disclose their data collection and disclosure practices to employees.
With employees working outside an employer’s view, some employers may need to use technology to track employees ‘working hours or productivity, monitor activity across company or trade secrets’ electronic resources, and protect their own information.
Employers required to comply with the California Consumer Privacy Act (CCPA) must notify employees of all 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 to do so.
Currently, an employer who violates the obligation to disclose data from the CCPA may be subject to a civil action by the State Attorney General. Although the CCPA includes a private right of action under certain circumstances in which the personal information of employees is unlawfully accessed by a third party, there is currently no private right of action by an employee to the detriment of an employer of the data collection disclosure requirements.
However, an employee could seek a court order to meet the employer’s requirements of the CCPA’s public requirements under California’s Unfair Competition Law, and then seek attorney’s fees under statutes that allow the compensation of such fees to be recovered in actions that result in a significant public benefit.
For companies that rely on a remote workforce, it is essential to understand how labor and privacy laws apply to such workers. Many of the laws require a relatively easy and inexpensive adaptation, while the consequences for breaking the law can be significant.
Damian Moos is a partner at Best Best & Krieger LLP. He represents clients throughout Southern California in matters involving business and employment conversations, intellectual property, privacy and false and misleading advertising. He can be reached at [email protected]. Kandice Kim is an attorney at Best Best & Krieger LLP who handles a variety of lawsuits for both public and private entities. She can be reached at [email protected].
