Employment Law: The 2020 Coronavirus Edition

By Kristen Harris

Like previous years, we recently attended the American Staffing Association’s Staffing Law Conference to stay on top of laws and legislative issues related to hiring, employment, and human resources management. Of course, this year was like no other. The conference was virtual, but the content was as useful as ever.

With many of the topics focused on current concerns related to COVID-19, we’re providing a quick overview of the top issues that may concern our clients. Please keep in mind that we are not attorneys and are only offering this as an informational resource. If you have questions or concerns about any of these issues, please consult with your legal counsel. 

Top Five Employment Law Issues:

  1. Background Checks. During the current pandemic, it can be more difficult or slower to complete background checks. So what do you can you do when a new hire is starting? The recommendation is to maintain your pre-pandemic policy, although execution might look different. Ideally, continue to complete all background checks before the new employee starts. However, there might be backups and delays in receiving information that makes this impractical. In that case, some companies allow the employee to start before the background check results are complete. It’s critical to be clear that the offer and start are contingent on receiving a clear background check. All FCRA disclosures and authorizations are still required, and when the background check has finalized the FCRA adverse action process must be followed even if the employee is already working. 

  2. I-9 Verifications. USCIS put temporary policies in place allowing employers to remotely inspect and retain documents related to completing an I-9. These policies are temporary, only apply to employers and workplaces that are operating remotely, and require re-verification of the documents in-person once it is possible to do so. The temporary policies are due to expire soon but have been extended once already. An alternate option is to follow a “remote I-9” process, utilizing a designated agent to perform the physical review of the documents. Some companies (ourselves included) already had a remote process to complete I-9s for employees that work remotely. This same process can be used to onboard all new employees while businesses continue to operate remotely.

  3. Remote Work and Time Tracking. There was A LOT of discussion about remote work. Many companies were forced to set up their employees to work from home on short notice, and a large portion of those workers are still remote as of today. When addressing HR-related issues with remote work, remember that the same rules generally apply to whether your employee is in the office or at home. It’s best practice to provide a remote work policy to employees as a separate document or addition to the employee handbook. Reiterate all policies that still apply to remote work and communicate any changes that apply only to a remote work situation. A key issue is ensuring that employees are paid for all hours worked. They are responsible for accurately reporting their time, but it’s important to have clear expectations around “work” and “nonwork” hours and activities. For hourly employees, there can be no “off the clock” or unreported work. It’s easy for home and work life to blend in these remote environments; one recommendation is to ask your employee to establish a “workspace” where they start, stop, and complete all of their work to make it easier to track their hours accurately. 

  4. Remote Work and Location Issues. In many cases, an employee working remotely is now in a different city or even state than your worksite. For now, most jurisdictions have waived rules related to location-specific payroll tax withholding. If the remote arrangement becomes permanent or those waivers are lifted, ensure you are withholding payroll taxes properly for where the work is now being performed. In addition, there could be different minimum wage, overtime, sick leave, or other requirements based on where the employee is actually working. Even if these items don’t apply to your office location, compliance may be required based on where your employee is located. Another issue to consider is clarification and policies around who is responsible for any required equipment or supplies. If your company is providing equipment, be sure to document each employee’s company-owned items at their remote location.

  5. Returning to Office Worksites. To help plan and manage a return to your worksite, there are many resources available from national and state organizations, plus groups like the National Safety Council. Communication is critical throughout this process. Determine your procedures and policies, then communicate with employees before they return so they know what to expect. Once they are within the office, continue to communicate the current plans and any updates. The biggest issue is confusion or miscommunication about expectations.

As we continue to navigate through 2020, the best way to protect yourself is to stay informed and proactive. Consult with your legal counsel and human resources expert to review policies and assess whether updates or new communication is required.

If you are a Portfolio Creative client and have questions about these topics, or anything else related to our dual responsibilities of hiring and employing talent, please contact us at HR@portfoliocreative.com.

If you are not a client and would like more information on how these topics may apply to your creative staffing or recruiting processes, connect with us at kristen@portfoliocreative.com.

For more information related to hiring, staffing, and employment, the American Staffing Association has valuable resources for both employers and employees.