The pandemic has changed just about everything, including how companies hire. Increasingly, remote hiring is the norm in the workplace that will largely be remote for the foreseeable future.
Remote hiring is uncharted territory for many employers, especially small business owners. While there are advantages to hiring remotely, like convenience and cost-effectiveness, there are also legal landmines. Knowing how to successfully navigate is critical for all businesses.
Here’s what to consider, to avoid costly mistakes.
Comply with the Fair Labor Standards Act
When hiring a remote worker it is critical to analyze the FLSA rules; they apply whether an employee is working in the office or from home. For example, “An employer needs to make sure that they do not get an FLSA violation for a remote hire where it is difficult to know how many hours the person is actually working out of the office. It is critical to keep track of an employee’s overtime if the person works more than 40 hours a week,” said David Reischer, an employment attorney and CEO of LegalAdvice.com.
Furthermore, just because remote workers aren’t physically present in the office, companies are not released from having to comply with health and safety regulations and laws. Also, employers are expected to implement measures to control and mitigate risk, by establishing a system for reporting and investigating injuries, sickness and any other issues that might occur.
Remember that state rules vary
Be mindful of employee expense and equipment reimbursements.
“Employees working remotely from some states are eligible for refunds for anything they use while working from home, including their internet, mobile phone, or even work desks and chairs,” said Cindy Deuser, HR manager for Thrive Agency, a digital marketing firm.
If you’re recording an interview, be sure you have the explicit permission of the interviewee, as most states have consent laws around this.
“Learn the labor laws in different states, find out what the minimum wages are, and register yourself in countries where you need to be registered (or don’t hire in those locations). Having little to no understanding of the labor laws in other states and countries will only set you up for disaster. Make sure you do your research and follow the right procedures for each location that your employees are in,” said Carla Diaz, co-founder of Broadband Search, a provider of information on internet service providers.
Barry Drexler, a human resources expert with Drexler Coaching, explained how interviewing job candidates can be tricky.
“During a remote video interview the hiring manager may see personal items in the background (e.g. books, ethnic decorations, a religious symbol or painting, etc.),’’ he said. “This issue of course wouldn’t happen in a face-to-face interview. If the hiring decision is based on any of this (which is clearly not job related) it could be discriminatory.”
Conducting an interview that is too short, say 10 minutes, because it’s only by video could prove problematic.
“While this isn’t illegal, it sets the firm up for a potential complaint since the candidate didn’t feel they received a fair interview. I’ve learned to treat the candidates that you ‘don’t hire’ with the most attention since they are the ones that sue; not the person you hire,” Drexler said.
It’s important too, to offer multiple options and methods of contact to ensure compliance with the American With Disabilities Act.
“The hearing impaired, for example, may need special accommodations for video calls. Google Meet has built in transcription, which may help,” said Derek Williamson, CEO of HigherMe, a provider of recruitment assistance for employers.
Consider citizenship requirements
Individuals who are remote workers cannot enter the United States on a tourist visa to perform work for that employer, even if minimal, according to Renata Castro an immigration attorney and founder of Castro Legal Group.
“It is common for employers, particularly smaller businesses, to not consider the long-term ramifications of the entry of that remote employee in the USA, should it be necessary,” she said.
Remote workers physically present in the United States are not exempt from compliance with I-9 requirements establishing eligibility to work lawfully in America.
The bottom line, said Robert Bird, professor of business law and Eversource Energy Chair in Business Ethics at the University of Connecticut, “Hiring remote employees must be done with the same care as an in-person employee.”