Suzzanne Decker, co-lead of Miles and Stockbridge’s labor, employment, benefits and immigration practice said the shift to remote interviews and work can pose challenges for employers. (The Daily Record photo)
The pandemic has caused a major shift in the way the world does business, including the way that employers interview candidates for jobs.
According to ADP, virtual interviews are used by 86% of organizations.
Experts in employment say that virtual interviews offer other benefits than eliminating the health risks associated with in-person interviews.
Instead of starting the interview with an email exchange or phone call, recruiters can meet candidates face-to-face.
Virtual interviewing can expand a candidate search for an organization to the entire internet-connected world. Virtual interviewing can, at a minimum open up a pool job candidates not tied to any particular region or city.
Experts warn that employers should be aware of the legal risks associated with virtual work environments.
The virtual office has changed the composition and workforce of companies, according to Suzzanne W.decker, co-lead for Miles and Stockbridges labor and employment benefits and immigration practice.
Virtual offices can be a great way for businesses to fill open jobs more quickly, but employees who live in different parts of the country can pose challenges. An employer that used to operate only in Maryland may not be aware that an employee working in another state is covered under the labor laws.
If an employee of a Maryland company works from California or New York, which have more generous leave rules, the employer might need to consider leave guidelines in those two states. Sexual harassment laws vary from one state to the next.
Decker said that it can be a gray area.
Experts say that companies who hire employees to work remotely from another state might need to register to do business in that state. They will also need to decide how much state taxes they can deduct from employees’ paychecks.
Decker said that many states believe that out-of state employers don’t have to worry about such matters. Decker also stated that she believes the state governments will provide guidance for taxpayers in the coming year as they try to maximize their tax revenue.
Decker advised businesses to consult a tax professional in order to clarify such issues. Decker also mentioned that certain states, like California, have guidelines regarding remote workers business expenses. This includes printer ink and internet connection.
Decker said that every state wants their employees to have the full benefits of their laws.
Stephen B. Stern is a partner at Kagan Stern Marinello & Beard Annapolis. He said that employers who hire from out-of-state must also consider the laws of other states regarding wages and hours, terminations of employment and discrimination.
Stern stated that this is a new phase in life. It may not be obvious which state laws apply to employees who telecommute full-time or part-time from other jurisdictions.
One question that could arise is whether telecommuting would be considered reasonable accommodation under the Americans with Disabilities Act.
Stern said that courts have historically deferred to companies who consider employees’ physical presence at work an essential function of a job. Today that dynamic is changing, he said — particularly if a company allows a hybrid work environment after the pandemic has passed.
Stern stated that there is a history of people being able do these jobs remotely. Businesses will have to look at the essential functions of jobs, especially if they require physical return to the office.
Stern and Decker warned that employers who conduct virtual interviews may also face disparate impact claims because not everyone has the technology required for them to do so. They said that companies should have more than one method to conduct remote interviews and that they must accommodate job applicants with disabilities.
Employers in some states must inform job candidates that the remote interview will be recorded. The state may also require candidates to inform interviewers if they wish to record an interview. It is illegal in Maryland to record conversations without consent from the other party.
Stern suggested that employers might consider asking job candidates to sign a statement or to make a verbal commitment that they will not record the interview.
