Don’t Counter Remote Work Fraud with Unlawful Practices

“Work less, make more,” they say; that’s the goal. Rumor has it, the secret to achieving this goal is remote work. Why? Well, for only $19.59 you can buy a “mouse jiggler” on Amazon! Plug it in, set your mouse on it, and it will randomly jiggle your mouse so your computer screen stays active, and your employer’s monitoring software can’t detect you. Watch Netflix, go for a run, work two jobs even. Genius, right? 

This is every employer’s fear when it comes to allowing employees to work from home. We know that some sources suggest around 8% of remote employees use mouse jigglers or keystroke devices. But is this really an issue employers should worry about, and what can employers do to address it? 

Don’t Lose Sleep Over Remote Work “Fraud” 

While work-from-home fraud is real, we have to remember that remote working is a benefit that allows companies to be more competitive in attracting a broader pool of qualified candidates. If remote work is a benefit in your company, then you should not be overly zealous about how or when an employee is working so long as the employee is getting the job done and meeting your expectations with work quality and quantity. 

If Jack is stellar at his job and can get eight hours of work done in six hours, then why do you care if he takes six, 20-minute breaks to do yoga and walk his puppy? Remember, Jack is great—you want to keep Jack, and he may be more likely to stay if he only must work 30 hours a week! It’s not “stealing” time when you are that productive. 

We strongly encourage employers to focus on managing performance—not when and how an employee is working. If Jack’s performance starts to falter, whether it’s because he is taking too many stretch breaks or he just doesn’t grasp the concepts, manage his performance with progressive discipline and performance improvement plans. If he doesn’t improve, regardless of the reason, it’s time for him to go. 

Watch Out for Unlawful Practices

If you think using software to monitor remote employees will help you sleep better at night, just be mindful of the following risks in doing so:

Prohibitions on Remote Monitoring: You must have a written policy that states, “Employees should have no expectation of privacy” when it comes to using their work devices. Many states (and countries) prohibit the use of electronic monitoring without a written electronic use or privacy policy.

Unlawful Deductions: Don’t assume that “idle time” equates to time not spent working. Many employers face state and federal wage and hour lawsuits for deducting aggregate idle time. This, though, may be unlawful in many ways. 

First, employers cannot deduct idle time from an exempt employee’s pay. Such an action violates the salary basis test of the Fair Labor Standards Act (FLSA) and an employer can lose its right to use the exemption. 

Second, federal law requires that breaks under 20 minutes be paid. If Jack takes 10, five-minute breaks throughout the day, all of those breaks must be paid and, if Jack’s employer were to deduct 50 minutes from Jack’s pay, whether he is exempt or non-exempt, then Jack’s employer is violating federal wage law. 

Finally, even if Jack took five, 20-minute breaks, his employer would run into a “proof” hurdle in court trying to prove that Jack was not working just because Jack was not wiggling his mouse. Indeed, Jack will argue that he was on the phone with a customer, taking handwritten notes, or had printed materials out to read in hard copy.

The best use of idle time or remote monitoring software is to use it as a trigger for investigating what the employee is really doing during the workday. Don’t use it to manage time or pay. Instead, manage performance and try to remember that remote work is a workplace benefit.