The Workplace Advisors specializes in providing HR assistance to associations such as PPAI and their member companies. 

Each month, the consultancy answers anonymous questions from companies about a myriad of topics. Below is advice on how to handle remote work requirements, especially if your employees work in other states.

Question: We have some employees who work remotely. We established requirements such as they need to have proper and secure internet access, they need to be able to protect the information of the company and our clients, and they need to be available during certain hours. We found out that an employee has been working from another location for the past month without our approval. What is the exposure and what are our options?

Answer: Allowing employees the flexibility of a remote work arrangement is a rapidly increasing reality that is welcomed by most employees. When creating the option, you should establish criteria (i.e., advanced approval, job duties that can be performed remotely, good job performance, etc.) and expectations (i.e., required hours of availability, performance standards, dependable and secure internet, video, and phone connections, a quiet and secure place to work, etc.). Explain these to employees and make sure they understand them as well as the repercussions if they fail to maintain them.

When an employee is no longer meeting those criteria and/or expectations, then you will need to reassess the situation to decide if it’s still a feasible option.

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For example, if an employee needs to work from another location for a short period (i.e., a week), you should verify if they will be able to perform their tasks. However, if they want to work from a different location for longer (i.e., three months while traveling), then you also need to consider bigger issues such as different state taxes, workers’ comp, employment laws, etc. Even if an employee is working from a different location for an afternoon (i.e., from a Starbucks), you need to ensure their internet access will be secure to protect your data and network.

You should also leave yourself the option to rescind or revise any work arrangement, including remote. If an employee is no longer meeting the criteria and/or expectations, then review the arrangement, explaining your concerns and what will happen if they can’t abide by the agreement. This becomes even more urgent if operations suffer, data integrity is compromised, or legal exposure is increased.

Question: We are based in one state but have two remote employees who work in other states. What employment laws do we need to follow?

Answer: In most cases, you need to follow the laws of the state the employee works in.

The following aspects follow the laws of the state where the employee works:

  • minimum wage
  • overtime
  • paid sick leave
  • paid leave
  • payout of vacation at termination
  • acceptable payroll deductions
  • protected groups


However, laws such as enforcing restrictive covenants (i.e., non-competes and non-solicitation) may fall under either state’s jurisdiction depending on legal precedent.

As with differences between state and federal law, you must defer to the law which most favors the employee. However, you’re allowed to apply a more generous standard to all employees if you find it easier to manage.

Question: We have 55 employees across multiple states, with some working remotely. However, we do not have 50 employees in one location. What are our FMLA obligations?

Answer: Under the Family and Medical Leave Act, any employer with 50 or more employees must notify their employees of their potential right to FMLA. This is done by posting the required notice and including an FMLA policy in your handbook. You would also need to process each employee going out on leave for FMLA, notifying them if they are eligible or not, within five days of learning of their need for leave.

One of the criteria to be eligible for FMLA is that the employee must work in a location with 50 or more employees within a 75-mile radius. While reviewing their eligibility, you must calculate the number of employees within that radius of their workplace.

In the past couple of years, guidance has been issued that remote employees count toward the office they report to and receive their assignments from. For example, if an employee works 75 or more miles away from anyone else but reports to the company headquarters with 49 or more people, they would be eligible for FMLA (if they meet the other service and reason for leave criteria).

Your best course of action is to process everyone for FMLA in a timely manner once you have reached 50 total employees and account for their work location properly.

To learn more, visit www.theworkplaceadvisors.com.