Question: We have some hybrid employees who regularly work in two states. They work some days from their home office in one state, and some days in our office in another state. Do we have to keep track of the time they’ve spent working in each state?
Answer: Not necessarily, but you do need to determine which state will be their primary state for HR and payroll compliance such as payroll tax withholding, unemployment benefits, workers’ compensation, and paid leave programs. Wage and hour requirements may be a little more challenging. If you’re able to comply with the requirements for both states, that’s ideal to avoid unexpected liability. For minimum wage and meal and rest period requirements, you should at least ensure that you’re applying the law of the state where the employee is physically located on any given day. Unfortunately, deciding which state is correct isn’t always simple and you will have to look at the state rules for each type of program. For example, we reported on the joint guidance issued by Oregon and Washington regarding how to report wages for multistate employees for Paid Leave Oregon versus Washington Paid Family and Medical Leave. Once you determine which state is appropriate, make sure you communicate that in writing to the employee to avoid any misunderstandings. It’s also important to periodically review the arrangement. It’s not unusual for an employee’s work location to change over time.
Members: Contact your Vigilant Law Group employment attorney with any questions.
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