Ethical, Legal Considerations for Remote Work

By Peter Eyre and M. Yuan Zhou

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Two and a half years into the COVID-19 pandemic, contractors have navigated numerous challenges facing their workforce. From creating new workspaces and practices to keep employees safe and secure, to adopting flexible and virtual work arrangements, to addressing the ever-present plague of “pandemic fatigue,” organizations continue to manage the changing landscape of the new reality.

As contractors settle into this “new normal,” it is also important that they remain vigilant to the ethical considerations and challenges that can arise in remote work environments, which are still relatively new to many companies.

The Pew Research Center recently reported that nearly 57 percent of the remote workforce either rarely or never worked from home prior to the coronavirus outbreak. With the reduction in daily connectivity to co-workers, supervisors and workplace resources — as well as the shift away from traditional methods of training, connecting and monitoring — the risk is greater than ever that employees could begin overlooking, or at the very least, become laxer in adhering to company ethics and compliance obligations and best practices.

Against this backdrop, here are some key areas for compliance attention and best practices for both contractor employees and employers when working in remote and virtual environments.

First, there are timekeeping considerations. Since the onset of the pandemic, there has been a significant reduction in staffing at both customer sites and contractor work locations.

The shift in physical distance and workplace culture means that many employees are no longer subject to the same degree of supervision and are also likely juggling an increase in personal and familial responsibilities throughout the day, thereby further escalating time constraints.

All these factors may lead to an increased opportunity for labor or time mischarging — whether intentionally, due to carelessness or otherwise — which brings with it an increased potential of False Claims Act risk for contractors that operate under certain types of contracts.

Second, consider supervision and approvals. When working in a remote environment, a shift away from daily in-person oversight of employee activities does not provide justification to be any laxer in adhering to supervisor responsibilities, such as the review of work product, task tracking or reimbursement or time approvals.

Contractors should consider adjusting the way they conduct supervisory functions and approvals to enhance compliance and oversight.

For example, timekeeping and labor-hour approvals may now require greater justification from employees — whereas in the past, employers could ostensibly rely on employee time entries due to their clocking-in and out of the office, employers may now want to require time-entry narratives that detail employees’ daily tasks and activities that can validate timekeeper logs.

Another factor is comfort with reporting concerns. Just because some employees are no longer working in shared spaces does not mean that there should be any shift in the expectation that they remain vigilant and report any potential concerns regarding non-compliance with company policies, procedures and applicable laws and regulations.

Contractors should continue reminding employees of their reporting obligations and resources and should also consider revising their investigations playbook to adjust to conducting internal reviews of employee or hotline complaints in a remote work environment.

And cybersecurity and information security are no less important. Transitioning to a remote workforce can lead to unintended consequences due to the use of employee home offices, such as potentially untested and unapproved software and systems, and/or flexibility in allowing employees to use whatever technology they think will help them do their jobs more efficiently.

Now more than ever, employers should be mindful of their cybersecurity and information security obligations and consider enhancing their back-end networks as well as employee-facing requirements.

And finally, consider confidentiality requirements. With children, partners, family and roommates spending more time at home — and with the potential flexibility of “remote” work from nearly any place around the globe — it can be difficult to maintain the confidential workplace that was readily available in traditional work environments.

Though it is unrealistic to expect employees to operate from hermitically sealed remote spaces, contractors should maintain the expectation of, and impose obligations on, employees to prioritize privacy and confidentiality of company information and systems.

For example, enforcing remote work hygiene best practices, such as multi-factor authentication requirements, mandating frequent password updates and reminding employees of confidentiality obligations — such as using headsets or turning off cameras when in less secure locations — will be more critical than ever to protect the confidentiality of contractor- and client-sensitive information.

Given the new complexities that arise with remote working arrangements, contractors should be cognizant of these issues and take steps to mitigate them, such as formulating a remote work policy to address specific concerns.

Contractors can then reiterate and remind employees of their ethical obligations, such as by requiring employees to revisit and certify compliance with the company’s code of conduct and ethics, enhancing employee training of company policies that address remote work considerations, and engaging in learning assessments to test employee knowledge of their obligations, thereby creating a more compliant and responsible remote culture and workforce.

Peter Eyre is partner at Crowell & Moring and co-chair of the government contracts practice. M. Yuan Zhou is a counsel in Crowell & Moring’s government contracts practice.


Topics: Ethics, Contracting, Contracting RulesEthics

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