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Remote Worker Onboarding Challenges

by Jennifer Shaw and Melissa Whitehead | The Daily Recorder | June 6, 2022

The increase in remote workers has created many new and unique challenges for employers, one of which is how to onboard workers who never come to an office or job site.  California law requires employers to provide specific information to new employees in writing.  However, remote onboarding is not as simple as emailing a copy of the employer’s regular new hire paperwork.  Although employers may electronically deliver most onboarding documents to remote employees with consent, the requirements vary regarding how employees must complete and return the forms.

Electronic Delivery of Onboarding Documents

Employers may electronically deliver notices mandated by law, so long as new employees consent and are able to print and store any legally required documents electronically. (Cal. Civ. Code. § 1633.8)  So, posting mandated notices on an organization’s intranet is insufficient if the intranet’s settings prohibit employees from printing or downloading documents. Some mandatory notice laws include specific requirements for electronic delivery. For example, employers may provide an electronic W-4 only if it is identical to a paper W-4, including the placement of instructions and the perjury statement.

Electronic Completion and Return of Onboarding Documents

Most onboarding forms are not subject to requirements related to employees completing and returning paperwork electronically.  However, employees must follow particular rules with respect to some forms.

For example, any agreement between the employer and the employee (e.g., employment agreement, commission agreement, etc.) must include a clause stating that the parties “agree to be bound by electronic signatures.”

Similarly, there are detailed requirements for completing federal and state tax forms electronically. An employee may only sign a W-4 electronically if the employer complies with the Electronic Signatures in Global and National Commerce Act (ESIGN) requirements. ESIGN requires, among other things, that the employee’s signature be verified and authenticated, and that the signature box on the form be unavailable until the employee has completed the rest of the fields on the form. If employers go beyond electronic signatures to a completely automated online form, the Internal Revenue Service imposes additional requirements. (Employment Tax Regulations § 31.3402(f)(5)-1(c) and IRS Publication 15-A)  The California Franchise Tax Board will accept certain types of electronic signatures on documents otherwise requiring original signature, such as the DE-4, through June 30, 2022. (Franchise Tax Board Public Service Bulletin 2020-31)

The federal Form I-9 poses unique challenges for remote onboarding because employers usually must verify an employee’s identification documents in person (Section 2). The USCIS’ limited exceptions to the “in person” rule expire on October 31, 2022. Under certain conditions, these exceptions allow employers to inspect the employee’s identification documents remotely using video, email, fax, or a similar method, provided the employer maintains copies of the documents they inspected remotely and write “Remote inspection completed on XX/XX/XXXX” in the Section 2 “Additional Information” box, or in Section 3 for reverifications. Employers must then track all Forms I-9 they complete using virtual verification.  Once the employee returns to in-person work, or the virtual verification policy ends, employers must coordinate in-person inspection within three business days. After October 31, 2022, California employers may satisfy the “in-person” requirement with a state-licensed notary or bonded immigration consultant who completes Forms I-9 on behalf of the employer.

Notice Requirements for Remote Employees

Effective January 1, 2022, an employer may satisfy requirements to physically post information at a remote employee’s worksite by emailing the posted document to those employees. (Labor Code § 1207) Employers, however, must continue to physically display required postings at any worksite where employees are present.

Federal law also imposes posting requirements.  For example, the United States Department of Labor (DOL) requires employers with 50 or more employees to physically display a notice regarding rights under the federal Family and Medical Leave Act (FMLA). The DOL encourages employers to post the FMLA notice electronically for remote employees. Employers also must send remote workers an electronic copy of the poster and notice that the poster is available on the employer’s intranet.

Practice Tips for Remote Onboarding

For documents that (1) employers may legally distribute electronically without employee consent, and/or (2) do not require employee signature, employers should require employees to sign and return a general acknowledgement of receipt.  For signed documents, employers should consider using DocuSign or a similar program to ensure security and authenticity.

Employers should have an alternate process for employees who do not consent to electronic delivery, or who are unable to complete the onboarding process electronically due to a disability or medical condition.

Employers should avoid making onboarding documents available to remote employees in advance of the first day of work. Time spent reviewing and completing onboarding paperwork may be compensable, and will start the clock on the three-day requirement to verify the employee’s identification documents and complete section 2 of the I-9.

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