According to the CDC, the first U.S. cases of COVID were detected in February of 2020. Following what may best be described as an upheaval of the hospitality industry, we have in many ways bounced back. With COVID’s two-year mark just behind us, our most visible employees are back where they‘ve always been—greeting guests, taking deliveries, managing food service, cleaning rooms, and coordinating weddings, conferences, and events.
But the industry has not been exempt from larger workplace trends, including the pandemic-driven tectonic shift from the traditional office to the hybrid workplace. Hotel executives, administrators, marketing professionals, office staff, salespeople and countless other employees, have spent the past two years working in their living rooms, home offices, kitchens and dens. Whether remote work is simply the new way we work or a temporary measure to weather the pandemic storm, what’s clear is that many hospitality employees will be working from home for the foreseeable future.
What’s equally clear is that many hospitality businesses are treating their remote staff as if they still go into the office every day. While technologies like Zoom, Google Meet and sometimes the traditional telephone have made the transition to remote work almost seamless, things are not quite as simple from an employment law standpoint.
To help illustrate why, let’s imagine a boutique hotel with locations in Manhattan and D.C. Prior to the pandemic, all its employees worked from those two locations, so management only had to worry about New York and D.C. employment laws. Today, however, the New York hotel may have employees working in Connecticut, New Jersey and Pennsylvania, while the D.C. location may have employees in Maryland, Virginia and even a few who moved to Florida.
The issue, from an employment law standpoint, is that remote employees trigger compliance obligations in the states where they are physically located, rather than the states in which their employers are located. This means that our hypothetical hotel, which was once subject to the employment laws of two states, is now subject to the employment laws of six.
And many of those laws impose very different obligations. As employees cross state lines, minimum wage goes up down, overtime rules change, medical leave entitlements increase and decrease and home office expenses may need to be reimbursed. While the list of differences could go on and on, the key point is that employment laws and regulations vary widely—and employers must ensure compliance in each state where their employees work. Let’s take a closer look at a few of the legal issues triggered by a remote workforce.
Sexual Harassment Prevention Training
Some states require that every employee completes an annual sexual harassment prevention training, subject to the specific training requirements of the state’s regulations. In other states, the onus on employers is less stringent and comes in the form of a recommended best practice rather than a mandate. If an employer has even a single employee working in New York, for example, then it must ensure compliance with New York’s anti-harassment training and policy requirements, which are stricter and more specific than those of other states.
Family and Medical Leave
Leave obligations are another area in which the rules change across state and even city lines. While federal law requires certain employers to provide job-protected unpaid family and medical leave for up to 12 weeks, state and local laws often impose more significant requirements. For example, employees in California may be entitled to paid leave to care for themselves or an ill relative, while employees in neighboring Utah have no such entitlement. Thus, a federally-compliant leave policy that raises no issues in Utah may be wholly insufficient for an employee who works remotely from a state like California.
Worker’s Compensation
You may very well know that the Four Corners Monument sits at the intersection of Arizona, Colorado, New Mexico and Utah, but perhaps you never considered that marker as a harbinger of worker’s compensation issues. Imagine a conference center based in Colorado with an employee who works from home in Arizona, but is injured while meeting with another employee who works from home in New Mexico. The injured employee may file a worker’s compensation claim in any one of those three states. Unless the conference center’s insurance policy specifically includes all three, then the employer may be left with a gap in coverage and a resulting administrative and logistical burden.
Evolving Rules
Of course, these are just a few basic examples—the employment law differences between states are nuanced, sometimes complex and often significant. Considering these multistate compliance challenges, how should hospitality businesses address the evolution of the traditional office?
The starting point is taking stock of the location from which each remote employee works. If employers don’t know where their employees are located, they can’t begin to ensure multistate compliance. Once the list of applicable states is complete, a common solution is to ensure that each individual employment policy complies with the strictest law in each state where one or more employees work. Many employers choose this approach for its simplicity, even though it provides entitlements like paid leave to employees who otherwise wouldn’t be eligible. In addition to streamlining policies, this approach also has positive HR implications because it strengthens the benefits of employment.
An alternative approach is to apply state-specific policies (especially those regarding the most onerous laws) only to employees who work in the relevant state. The downside of that approach is that it creates an HR and logistical challenge when different employees are subject to different policies depending on where they live.
Ultimately, the choice belongs to each employer. The most important part is to make a choice, and operationalize it, or else the outcome of employee mobility may be employers finding themselves in the crosshairs of private or regulatory actions.
Isaac Mamaysky is a New York-based partner at Potomac Law Group.