Maintaining Compliance With Your Remote Workforce


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In this one-hour webinar, sponsored by DocuSign, your host Steve Cape will be exploring the “virtual office” and the key State and Federal compliance measures needed for navigating this workplace landscape of telecommuters and independent contractors. Also gleaned from this webinar will be learning how to avoid common situations that may have serious consequences and also how to preserve the benefits and rewards of the “virtual office” setting. This will be one webinar you cant afford to miss with 21st century technology clashing up against 20th century laws and Steve Cape in the middle to help you grasp a better understanding of it all.

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  • Telecommuting can be a cost-effective alternative to traditional work arrangements or an accommodation for certain employees. The key to a successful telecommuting program is a well-drafted policy that clearly defines the expectations, requirements, and goals of the workers who telecommute--and their managers and supervisors. With the ability to With the ability to communicate and transmit documents and information electronically via e-mail, phone, or fax, telecommuting can offer seamless productivity in certain professions, via e-mail, phone, or fax, telecommuting can offer seamless productivity in certain professions.Word Press is good example ofa Virtual Company,
  • The name has evolved over time, regulations have not and are rooted in laws that were passed before the telephone was a common sight in American Homes.
  • 1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor. Location is not a key factor.When in Doubt IRS Form SS-8Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding may provide a safe harbor for the employer.Compliance is easier for contractor as it is a business to business relationship.
  • Status as a Virtual employee does not change or modify the rules. An employee is an employee and is thus covered by all state and federal laws and regulations.An Ind. Contractor relationship is a business to business relationship. Independent Contractor Certificates programs like Montana’s should be encouraged and if available required. California allows 1099 recipients information to be shared with local jurisdictions for business license checks and taxation. (AB63 tax enforcement program) Any business or government entity that is required to file a federal Form 1099-MISC for services received from an independent contractor is required to report specific independent contractor information to the Employment Development Department (EDD
  • Information Security is the Employers Responsibility. Determining the status as an employee or contractor may invoke the requirement for a formal Business Associate Agreement if the virtual person has access to or works with information covered under HIPAA. Documents created at home that contain private or sensitive information must be destroyed /disposed of in a secure manner this requirement also covers information stored on the individual’s computer(s). Document transfers are another security issue.Validating and using Digital signatures in a world market are key to the enforceability of contracts and agreements. Using Document signature services or in-house systems to validate signatures should be considered rather than relying on the mail or other services.
  • OSHA stated that it will not inspect the homes of workers unless the “home site” is a manufacturing location and then the inspection will be limited to the area used for the manufacturing activity. OSHA also clarified that the Employer except in certain circumstances would not be fined for an “unsafe” House. But Employers must keep records of injuries that occur even at a virtual worker’s home.
  • Injuries sustained by a telecommuter may be covered under Work Comp. also travel to and from the Employers physical location may also be covered if done as part of employment. E
  • Tracking hours is difficult when the employee is at another location. Overtime can occur in many situations, after hours calls, using your IPad to work while on the bus, putting in extra effort to get that report done from home etc.. The employee has the same rights as if they were at the office.Allen v. City of Chicago, 2011,Wl 941383 (N.D.Ill.2011) Case addressed PDA use after normal work hours as basis for an unpaid overtime claim.
  • A strong policy and notice form that clearly states there is no privacy when using company systems is recommended. Monitoring may become an issue if the employees equipment is used.
  • I am not sure if someone is going to demand an inspection of mandatory posters in the dining room but the regulations do not have an exception or telecommuters. Their home is a work location and the posters sould be available to them to avoid multiple liability potentials ( FMLA, FLSA, State Regs etc..)
  • Viritual or Telecommuting can be an accommodation. Thus arrangement may benefit everyone by keeping employee talent accessible. A Fitness for Duty Certification is recommeded.
  • If the worker is classified as an Independent Contractor requiring the compliance with local licensing laws and tax regulations does give weight to the Ind. Contractor designation.
  • Be careful of situation where double income taxation may occur.
  • The double taxation has been upheld in the Courts.
  • The states with a convenience rule that could subject an employee to increased taxation.
  • Maintaining Compliance With Your Remote Workforce

    1. 1. Maintaining Compliance With Your Remote Workforce Reaping the Advantages (& Avoiding the Pain) of Handling Offsite Employees
    2. 2. Virtual Work Today  The Workplace is 21st Century (i.e., anywhere)  Statutes and Regulations are early 20th Century  Creating a virtual / telecommuting work environment has many benefits:  Reduced brick and mortar costs  Reduced labor costs  Optimization of resources
    3. 3. Telecommuter > Virtual Worker The names have changed… The technology has changed… The rules have not. ◦ Dept. of Labor ◦ Equal Employment Opportunity Commission ◦ Occupational Safety and Health Administration ◦ State Regulatory Agencies  Main body of US labor regulations dates
    4. 4. Virtual Employee or Contractor? “Working from home doth not a contractor make.” The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.
    5. 5. Virtual Employee or Contractor are employees subject to company policies, and with full access to benefits and regulatory protections. are a business-to- business relationship. Compliance with the majority of tax and labor regulations is the Contractor’s responsibility.
    6. 6. Technology Considerations  Is the Information covered by HIPAA? ◦ Business Associate Agreement ◦ Document Transfer  Digital Signatures  Jurisdictional Concerns  2005 UN Convention, Canadian PIPEDA, EU Directives ◦ What happens to lost equipment? ◦ Security Software
    7. 7. There’s No Escaping OSHA (Occupational Health & Safety Act) OSHA Instruction CPL-2-0.125 ◦ The OSH Act applies to a private employer who has any employees doing work in a workplace in the United States. It requires these employers to provide employment and a place of employment that are free from recognized, serious hazards, and to comply with OSHA standards and regulations ◦ Employers who are required, because of their size or industry classification, by the OSH Act to keep records of work-related injuries and illnesses, will continue to be responsible for keeping such records, regardless of whether the injuries occur in the factory, in a home office, or elsewhere, as long as they are work-related, and meet the recordability criteria of 29 CFR Part 1904.
    8. 8. …or Workers Compensation Injuries incurred in a telecommuting/virtual employee’s home may be covered by workers’ compensation if the employee was injured in the course and scope of their employment. ◦ Liability –Factors to Consider  Regularity of work performed at home?  Is the telecommuting an employee or employer convenience?  Designated Workspace / Business Equipment?
    9. 9. Wage and Hour Concerns  Tracking Time Worked ◦ Overtime Liability ◦ Meal and Rest Periods  Location is irrelevant; the Employer must ensure compliance with federal and state wage and hour laws.
    10. 10. Privacy Issues Confidentiality and privacy issues ◦ Email ◦ Internet Usage ◦ Access to Company Information ◦ Employee Monitoring Have a Policy on Internet security and Email  Should state that workers have no expectation of privacy or confidentiality when using work- related computer or Internet resources
    11. 11. Home Decorations Nothing says Home Sweet Home more than an OSHA or FMLA Poster Posting requirements do not exempt home offices. An employee working at home is required to post all required workplace posters in his/her home office.
    12. 12. Leaves and Accommodations Telecommuting may be a disability accommodation. ◦ EEOC Guidance suggests Telecommuting could be a reasonable accommodation. ◦ Could be utilized as a part time option under FMLA ( But cannot be Required) Document in detail the accommodation or the reasons for the denial.
    13. 13. Tax Issues Generally, Telecommuting / Virtual Workers do not have to have a business license or pay business Taxes. Independent contractors generally do.
    14. 14. Tax Issues Generally provides that days worked from home are treated as the employer’s “State” work days unless the nonresident employee worked outside of the employer’s State by necessity.
    15. 15. Tax Issues ◦ Example of Double Taxation: Bob works for a company in New York and commutes there 2 days a week. Bob works from his home in Connecticut 3 days a week. Bob is taxed by New York on all his income earned from the New York employer. Bob is also taxed on his income by Connecticut. (Resident State) A Telecommuter may avoid double taxation if they do not enter the employer “state.”
    16. 16. States with the Employer Convenience Rule New York 20 NYCRR §132.18(a) Delaware Del. Schedule W Pennsylvania 61 Pa. Code §109.8 Nebraska Title 316, §22-003.01C(1)
    17. 17. Questions