While the COVID-19 pandemic may be waning, the litigation surrounding government Stay-at-Home Orders has not yet waned. Some of the disputes are instructive on employers’ obligations to remote workers.
In Thai v. International Business Machines Corp. Paul Thai was an employee of IBM when California Governor Gavin Newsom issued an order requiring residents to stay at home except as needed to maintain operations in critical sectors. IBM directed its employees to continue working at home.
Thai and the other plaintiffs sought penalties against IBM under California’s Private Attorneys General Act for alleged violations of section 2802, subdivision (a) (section 2802(a)), which requires an employer to reimburse an employee “for all necessary expenditures . . . incurred by the employee in direct consequence of the discharge of his or her duties.” Plaintiffs contended IBM failed to reimburse Mr. Thai and other employees for the expenses necessarily incurred to perform their work duties from home including such items as internet access, telephone service, a telephone headset, and a computer and accessories. The trial court sustained IBM’s demurrer, concluding the Governor’s order was an intervening cause of the work-from-home expenses that absolved IBM of liability under section 2802. Thai appealed. The appellate court reversed because it found the trial court’s conclusion to be inconsistent with the statutory language and remanded the case to the trial court to ascertain what expenditures were necessary expenditures incurred by the employees in direct consequence of the discharge of their duties at home.
The Thai case should be a wake-up call for those employers with remote employees. The employer needs, at a bare minimum, a policy that indicates what it will and will not pay for and to have it signed by the employee. Contact your employment attorney to address the unique risks presented by remote employees.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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