Compliance Reminders for Employers with Remote Workers in California

Many employees across California have return to the office, but many are remaining remote despite the lifting of statewide COVID-19 restrictions.

Employers with remote employees in California need to ensure they are complying with the state's employment laws when it comes to those working from home. For purposes of the state's wage and hour laws, the home office is generally treated the same as the regular office.

California Labor Code Section 2802 requires employers to reimburse employees for "all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties."

For remote employees, what an employer may need to reimburse could include internet and cell phone services. Prior California court decisions have concluded employers must reimburse for reasonable portions of an employee's cell phone use when the employee uses their cell phone for work. However, reimbursement may not be required when an employer provides devices to employees, even if the employee ultimately elects to use their own personal device.  Certain reimbursements may also not be required for those employees who have the option to work in the office and voluntarily choose to work from home.

Tracking time for employees who are not exempt from overtime becomes even more important for remote employees. California's wage orders define hours worked as "the time during which the employee is subject to control of the employer" regardless of whether work is being performed. Moreover, the wage orders require employers to track all time worked, specifically when the employee "begins and ends each work period" and all meal periods.

California's meal and rest period requirements also apply to employees who are working remotely. "Non-exempt employees are entitled to a 10-minute paid rest period for every 4 hours worked (or major fraction thereof)." Employees must also receive a 30-minute unpaid meal break for every five hours worked. Though meal and rest periods may be hard to track for a remote employee, it is important that employers communicate with the employees the company's policy and check in with employees to ensure compliance.

Shannon Bettis Nakabayashi is an attorney with Jackson Lewis in San Francisco. Jamielee F. Martinez is an attorney with Jackson Lewis in Silicon Valley, Calif. © 2022 Jackson Lewis. All rights reserved. Reposted with permission.