Senior Attorney
Author’s Note: This guide is designed for HR professionals and business owners navigating the remote work landscape across the United States.
Remote work is no longer a temporary solution or a privilege offered only to a select few. It has become a fundamental part of modern workforce strategy. But while the benefits of remote work are clear, such as access to a broader talent pool, increased flexibility, and often higher productivity, the legal and operational risks can be significant if you don’t implement the right policies.
Creating a legally sound remote work policy is essential for compliance, clarity, and consistency. Whether you’re drafting your first policy or refining an existing one, this article offers practical, legally informed guidance tailored to the realities HR professionals and small business owners face today.
- Why a Remote Work Policy is Essential
A remote work policy is more than a formality. It defines expectations, protects your organization from liability, and creates a framework for managing performance, security, and compliance in a dispersed work environment. Without a well-drafted policy, even a well-intentioned remote work arrangement can quickly go off track.
- Key Components of a Legally Sound Remote Work Policy
Below are the essential sections your remote work policy should include. Each element is grounded in legal best practices and common HR concerns.
- Eligibility and Approval Process
Define who is eligible to work remotely and under what circumstances. Use objective criteria to avoid the appearance of favoritism or discrimination.
Best Practices:
- Establish roles or departments where remote work is permitted.
- Clarify whether remote work is a privilege, a right, or a necessity.
- Require written agreements for remote arrangements.
Legal Tip: Avoid inadvertently creating implied contracts by stating clearly that remote work arrangements are subject to change based on business needs. Include language that reserves the company’s right to revoke or modify the arrangement.
- Work Hours, Availability, and Timekeeping
Remote employees must comply with the same work hour expectations as on-site staff. This is especially critical for non-exempt employees under the Fair Labor Standards Act (FLSA).
Best Practices:
- Define core work hours and expectations for availability.
- Require accurate daily timekeeping for non-exempt employees.
- Prohibit off-the-clock work and clearly communicate overtime approval procedures.
Common Mistake to Avoid: Do not assume remote workers are exempt from wage and hour laws. They are not. Timekeeping is just as important, and in many cases, more important when employees are unsupervised.
- Performance Standards and Communication Expectations
Clarity around performance is critical. You must maintain consistency in managing productivity, regardless of where the employee works.
Best Practices:
- Set measurable performance goals.
- Require regular check-ins or status reports.
- Specify expectations for responsiveness and communication tools.
HR Insight: Consistent documentation and feedback will protect your organization in the event of disputes or disciplinary actions, especially in a remote environment where direct observation is limited.
- Data Security and Confidentiality
Remote work increases the risk of data breaches and inadvertent disclosures. A remote work policy must address IT security protocols.
Best Practices:
- Require the use of company-approved devices and VPNs.
- Prohibit public Wi-Fi or require secure connections.
- Enforce company policies on confidentiality and secure file storage.
Legal Tip: Consult with your IT and legal teams to ensure your security policies align with applicable data privacy laws. This is particularly important if your employees handle protected personal information or health records such as under HIPAA or CCPA.
- Workspace Safety and Workers’ Compensation
Your business can be liable for injuries that occur in an employee’s home office during work hours.
Best Practices:
- Require employees to maintain a safe, dedicated work area.
- Include self-certification checklists for home office ergonomics and safety.
- Make clear that work-related injuries must be reported immediately, even in a remote setting.
Common Mistake to Avoid: Do not overlook OSHA compliance or workplace safety requirements just because the employee is working from home.
- Reimbursement of Business Expenses
Several states, including California and Illinois, require employers to reimburse necessary business expenses, even for remote workers.
Best Practices:
- Define what expenses are reimbursable such as internet, cell phone, or office supplies.
- Require pre-approval for significant costs.
- Develop a clear reimbursement procedure and timeline.
Legal Tip: Even if your state doesn’t mandate reimbursement, a consistent and fair approach helps maintain employee trust and may reduce turnover.
- Tax and Jurisdiction Considerations
The physical location of your remote employees may create tax and legal obligations in multiple states.
Best Practices:
- Track the physical work locations of remote staff.
- Coordinate with legal and tax advisors before approving out-of-state remote arrangements.
- Include language in your policy that requires employees to disclose relocation plans in advance.
Common Mistake to Avoid: Allowing employees to relocate to new states without evaluating the impact on your business’s tax nexus, registration, or unemployment insurance obligations.
- Policy Acknowledgment and Documentation
Any policy is only as strong as its implementation. Ensure every remote worker reads, understands, and signs off on the policy.
Best Practices:
- Require signed acknowledgment of the policy.
- Update the policy regularly to reflect changes in law or technology.
- Keep detailed records of remote work approvals and any disciplinary actions related to remote work.
- FAQs from HR Professionals and Small Business Owners
Q: Can I treat remote and in-office employees differently?
A: Yes, but you must be consistent and fair. Decisions must be based on legitimate business reasons and not on protected characteristics such as age, gender, or disability. Document your rationale to defend against claims of discrimination.
Q: Am I responsible if an employee gets injured while working remotely?
A: Possibly. Workers’ compensation generally covers injuries that occur during the course and scope of employment, even at home. This is why it is critical to implement safety expectations in your remote work policy.
Q: What if an employee refuses to return to the office after remote work is revoked?
A: If remote work was not contractually guaranteed, you may enforce return-to-office policies. However, you must carefully evaluate any ADA accommodation requests and engage in the interactive process if applicable.
Q: Do I need different policies for employees in different states?
A: Not entirely. However, you may need to tailor specific provisions to comply with state laws regarding wage and hour rules, expense reimbursement, final pay, and leave requirements.
- Final Thoughts:
Remote Work is Here to Stay, So Make Your Policy Count
A remote work policy is not just a legal safeguard. It is a strategic tool. When designed thoughtfully, it promotes clarity, protects your business, and helps your team succeed. As an HR professional or small business owner, you do not need to anticipate every scenario, but you do need a solid foundation based on compliance and practical management.
If you haven’t reviewed your policy in the past year, now is the time. If you don’t have one at all, it is important to put one in place before any major issues arise.