March 12, 2022 marks the second anniversary when the National Basketball Association first canceled games because of COVID-19. In the two years since, there have been waves of COVID. Just last year, President Joe Biden made a speech on Independence Day stating: “Thanks to our heroic vaccine effort, we’ve gained the upper hand against this virus. We can live our lives, our kids can go back to school, our economy is roaring back.” However, shortly after the President made his speech, the Delta variant began to surge, and other countries reinstated their lockdowns. The surge was so significant that the administration released statements that there would be no second lock down, no matter what occurred.
Because of the situation’s fluid nature, companies have waffled back and forth regarding remote work policies. On March 2, Google announced that their California campuses would return to the office on April 4. However, other companies, including Amazon and Deloitte, have positions that are fully remote. Of course, some companies have a semi-work from home model, where employees alternate between the office and working from home.
Living in a bi-national and tri-state community, companies in El Paso have employees living and working in different states. A trip from downtown El Paso to New Mexico can be about 15 minutes. Accordingly, employers consistently ask, “what law applies?” There are several different scenarios, but the main ones employers typically come across are:
- An employee’s position is fully remote;
- An employee’s position only became remote in response to the pandemic, but the employer plans to return to the office; and
- An employee has a hybrid schedule where they work from home some days but come into work on other days.
The law does not provide a clear-cut answer. However, it does offer some guidance regarding how to approach the unique situation where employers may find themselves.
Unfortunately, Texas law regarding this issue is limited, but a pre-Covid federal court case helps shed light on what laws apply in such a situation. In Rinsky v. Cushman & Wakefield, Inc., an employee sued his former employer for both age and disability discrimination. 918 F.3d 8, 12 (1st Cir. 2019). The employee originally worked in New York for 27 years but then moved to Massachusetts and started teleworking from home in Massachusetts. A few weeks after the plaintiff employee started teleworking, the employer terminated him. One of the employer’s stated reasons for terminating the employee was because he did not fill out the proper transfer paperwork in the office. When determining what law to apply, the court noted that “the question is whether the impact of an alleged discriminatory decision was felt within New York City.” Teleworking does not preclude one from a state’s discrimination laws either. After analyzing that the plaintiff worked in New York for so long, the court determined that the plaintiff could bring a state law claim. However, the circuit court did not list out any other specific factors it could look to. The First Circuit noted, though, that it wanted to avoid the “chicanery of misleading or lulling employees into working remotely from outside New York City before terminating them.” Additionally, the First Circuit cited a New York case where an employee could not avail themself of New York laws when the employee worked in an Atlanta office and only had occasional personal visits to the New York office.
Accordingly, the First Circuit—also in the pre-Covid era—explored the difficult analysis of whether an employee can avail itself to more employee-friendly laws if an employee works remotely. Therefore, an employer needs to take into account a number of factors when they institute a work from home policy:
- Will the employee be working in another state?
- Is the remote work permanent?
- How much contact would the employee have with the home office?
- Where are employment decisions made?
- How long has the employee been working with the company?
- Is the company keeping up-to-date records regarding an employee’s work location?
However, as a whole, there is one sure-fire way to ensure that there is no confusion regarding remote work policies—employment agreements and choice of law provisions. Each state is different regarding whether it would enforce a choice of law provision. For example, a Texas court will look at the following factors in determining whether a choice of law provision applies: (1) whether Texas has a more significant relationship with the parties and the transaction than the state selected; (2) whether Texas has a materially greater interest than the chosen state; and (3) would Texas’ fundamental policy be contravened by applying the chosen states’ law[1]. New Mexico will typically uphold a choice of law provision unless it violates public policy[2]. As such, if an employer provides a choice of law policy, it should take into account the above factors, and on-the-border companies can more fully protect themselves by requiring employees to sign a choice of law agreement before instituting a remote work policy.
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About the Author:
Adrian Acosta is an associate in the El Paso, Texas office at Dickinson Wright. He is licensed in both Texas and Michigan and assists clients in all areas of employment litigation, including discrimination, workers’ compensation, and wage and hour. Adrian has also assisted in providing clients advice regarding vaccine mandates, requirements, and other COVID-19 procedures. Adrian also conducts workplace investigations and provides compliance training to different industries. Adrian can be reached at (915) 541-9326 or at aacosta@dickinsonwright.com. Adrian’s business biography is found here.
[1] TransPerfect Translations, Inc. v. Leslie, 594 F. Supp. 2d 742, 748 (S.D. Tex. 2009)
[2] Flemma v. Halliburton Energy Serv., Inc., 303 P.3d 814, 819 (N.M. 2013).)