Remote Employees – Dukesons Business Law - Employment Lawyer – Business Lawyer

August 2020

This Blog isn't legal advice – if you need legal advice on any employment law issue, please contact me. I'm business lawyer (commercial lawyer) in Auckland who provides advice on a wide range of business law including employment law issues.

This article was written yesterday, little knowing that by the end of the day, the country would be told that Auckland would go into Alert Level 3 today. The article is even more pertinent now, both generally and especially if Level 3 endures for more than 2.5 days (and if more of the country is put under Level 3).

Businesses have plenty to deal with. For those other than a lucky few, there’s pressure caused by the economic effects of the Covid 19 crisis. That pressure won’t be helped when the wage subsidy extension expires. (Due to the latest developments, and if they endure, it's possible that there may be a further extension to the subsidy.) There are suggestions that the Labour Government will extend minimum sick leave entitlements under the Holidays Act. Fine for employees but for businesses that are struggling and that have had already had to accept domestic violence leave entitlement for employees, the hits just keep on coming. Chances are, post-September, there will be more.

It was predictable that one effect of the Covid 19 crisis was that employees would get a liking for working from home. For some time, employees have had an entitlement to request flexible working and employers have limited grounds to refuse such a request. Some employers are facing resistance in terms of getting “bums on seats” after the earlier lock downs. (Remote working may be beneficial to some employers. Employers faced with large rent may find comfort in a remote working workforce, where this is practical.)

Remote working gives rise to a range of issues. Where the employees are office workers and extensively use computers to do their work, issues include:

  • remote access to office systems and use of own electronic devices to do work,
  • productivity, and
  • health and safety.

Remote access to office systems involves consideration of issues like:

  • Whether employees will use their own devices or work devices.
  • To what extent should the employer pay for work related expenses like power, the internet, repairs to and maintenance of devices, consumables, etc.
  • Ensuring that there’s a policy in place that deals with access to office systems and the use of electronic devices (including phones) by employees to do work. A comprehensive policy will deal with amongst other things):
    • whether office equipment/systems can be used for personal use as well as work;
    • safe use and appropriate use of systems and devices;
    • confidentiality and privacy;
    • copying of information;
    • plug in devices;
    • time wasting (computers and phones);
    • monitoring;
    • what is required in relation to employee devices used for work when employment ends e.g. making them available for inspection, wiping of work related information, etc.

As for productivity, superior productivity is often claimed in relation to working from home but some of those claims should be taken with a grain of salt. Some types of work are more suitable to remote working than others, and some may have less emphasis on productivity than others. Even relatively conscientious employees are willing to spend significant amounts of their employer’s time on personal emails and texts, no matter where they work. With possible distractions when working at home added to the mix (family, TV, the internet, etc),can it be assumed that most employees will be as productive or more productive than when working at the office?

Some employers will be more relaxed about that than others but many will want to be able to monitor performance in some way. Options include:

  • monitoring software,
  • completion of time sheets,
  • comparison of time sheets against results e.g. billing, sales achieved,
  • a requirement to be available for contact during the days and hours specified in the employment agreement as being the normal working days and hours,
  • regular reporting including meetings (don’t underestimate the importance of physical contact in team building and also getting to know employees).

While a computer policy should deal with confidentiality and privacy issues when accessing office systems or otherwise doing work on devices, there would also be a need to deal with these issues when working at home from the point of view of shielding work matters from family and visitors. Working from home adds another layer of complexity.

As for health and safety issues, when working from home, the part of the home used for work is the employee’s place of work. Most employers probably understand this. Both the employer and the employee will have health and safety obligations in that regard. For the employer, it isn’t necessarily easy to comply with those obligations – the fact is that the home is the employee’s castle. However, provision needs to be made to ensure at the outset that there are no obvious hazards/risks in the home-work area and for the position to be reviewed from time to time.

To deal with the issues referred to in this blog as best an employer can, there should be:

  • a comprehensive computer policy that extends to the use of other electronic devices used for work e.g. phones, and that deals specifically with work through remote access;
  • a working from home policy, to be read in conjunction with the computer policy, that adds any further specific detail that may be required in terms of working from home, and that deals with the health and safety issues when working from home.

Let me know if you would like to discuss that kind of documentation for your business.

There is the same issue as arose in relation to prior lockdowns as to whether employment terms need to be varied. Usually, this can't be done without the agreement of employees and it's important to ensure that any variations will be for a fixed period of time or will be reviewed at a specified time.

A reminder – Covid 19 may revisit us (it has!), there may be other pandemics in future, and there can be other situations that disrupt business. For the future, now is the time to consider including more comprehensive force majeure type clauses in employment agreements.

Also, don’t hesitate to contact me now if you’re concerned that you may have to look at some form of restructure/redundancies in the near future – it’s even harder to deal with that circumstance under more severe time and financial constraints.

Please:

  • contact me if I can help you with any employment law or other business law or commercial law issue;
  • subscribe to update alerts (if you don't already get them);
  • feel free to forward a link to this blog to anyone who would be interested
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2 Enfield Street, Mt Eden, Auckland 1024. PO Box 946, Shortland Street, Auckland 1140.
Telephone: +64 9 379 4556 Mobile: 021 404 306. Fax: +64 9 379 4557 Email: steve@dukesons.co.nz