SHARE

March 14, 2022

In The West Texas Town Of El Paso, I Fell In Love With Working From New Mexico: Applying Home State Laws For Remote Work.

You've Reached Your
Free Article Limit This Month
Subscribe now to get unlimited access to all Law.com OnPractice content. Your subscription is free.
Subscribe Now

Key Takeaways

  • The law does not provide a clear-cut answer. However, it does offer some guidance regarding how to approach the unique situation where employers may find themselves.

March 12, 2022 marks the second anniversary when the National Basketball Association first canceled games because of COVID-19. In the two years since, there have been waves of COVID. Just last year, President Joe Biden made a speech on Independence Day stating: "Thanks to our heroic vaccine effort, we've gained the upper hand against this virus. We can live our lives, our kids can go back to school, our economy is roaring back." However, shortly after the President made his speech, the Delta variant began to surge, and other countries reinstated their lockdowns. The surge was so significant that the administration released statements that there would be no second lock down, no matter what occurred.

Because of the situation's fluid nature, companies have waffled back and forth regarding remote work policies. On March 2, Google announced that their California campuses would return to the office on April 4. However, other companies, including Amazon and Deloitte, have positions that are fully remote. Of course, some companies have a semi-work from home model, where employees alternate between the office and working from home.

Living in a bi-national and tri-state community, companies in El Paso have employees living and working in different states. A trip from downtown El Paso to New Mexico can be about 15 minutes. Accordingly, employers consistently ask, "what law applies?" There are several different scenarios, but the main ones employers typically come across are:

  1. An employee's position is fully remote;
  2. An employee's position only became remote in response to the pandemic, but the employer plans to return to the office; and
  3. An employee has a hybrid schedule where they work from home some days but come into work on other days.

The law does not provide a clear-cut answer. However, it does offer some guidance regarding how to approach the unique situation where employers may find themselves.

Unfortunately, Texas law regarding this issue is limited, but a pre-Covid federal court case helps shed light on what laws apply in such a situation. In Rinsky v. Cushman & Wakefield, Inc., an employee sued his former employer for both age and disability discrimination. 918 F.3d 8, 12 (1st Cir. 2019). The employee originally worked in New York for 27 years but then moved to Massachusetts and started teleworking from home in Massachusetts. A few weeks after the plaintiff employee started teleworking, the employer terminated him. One of the employer's stated reasons for terminating the employee was because he did not fill out the proper transfer paperwork in the office. When determining what law to apply, the court noted that "the question is whether the impact of an alleged discriminatory decision was felt within New York City." Teleworking does not preclude one from a state's discrimination laws either. After analyzing that the plaintiff worked in New York for so long, the court determined that the plaintiff could bring a state law claim. However, the circuit court did not list out any other specific factors it could look to. The First Circuit noted, though, that it wanted to avoid the "chicanery of misleading or lulling employees into working remotely from outside New York City before terminating them." Additionally, the First Circuit cited a New York case where an employee could not avail themself of New York laws when the employee worked in an Atlanta office and only had occasional personal visits to the New York office.

Accordingly, the First Circuit—also in the pre-Covid era—explored the difficult analysis of whether an employee can avail itself to more employee-friendly laws if an employee works remotely. Therefore, an employer needs to take into account a number of factors when they institute a work from home policy:

  • Will the employee be working in another state?
  • Is the remote work permanent?
  • How much contact would the employee have with the home office?
  • Where are employment decisions made?
  • How long has the employee been working with the company?
  • Is the company keeping up-to-date records regarding an employee's work location?

However, as a whole, there is one sure-fire way to ensure that there is no confusion regarding remote work policies—employment agreements and choice of law provisions. Each state is different regarding whether it would enforce a choice of law provision. For example, a Texas court will look at the following factors in determining whether a choice of law provision applies: (1) whether Texas has a more significant relationship with the parties and the transaction than the state selected; (2) whether Texas has a materially greater interest than the chosen state; and (3) would Texas' fundamental policy be contravened by applying the chosen states' law[1]. New Mexico will typically uphold a choice of law provision unless it violates public policy[2]. As such, if an employer provides a choice of law policy, it should take into account the above factors, and on-the-border companies can more fully protect themselves by requiring employees to sign a choice of law agreement before instituting a remote work policy.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

More From Dickinson Wright PLLC

401(k) Plan Sponsors - It Doesn't Pay To Ignore Your Plan's Definition Of Compensation

By Jordan Schreier Dickinson Wright PLLC June 06 , 2022

One of the most common errors in 401(k) plan administration continues to be a mismatch between a plan’s definition of compensation and the actual compensation taken into account for plan purposes despite this problem being common enough for the IRS to include it in its “401(k) Plan Fix-It Guide”.

All My Exes Live In Texas: Texas' New Laws In The Wake Of #METOO And A Growing Economy

By Adrian Acosta Dickinson Wright PLLC May 23 , 2022

With Texas growing and business booming, the Lone Star State has changed its laws that affect employers in response to the #MeToo movement.

UPDATE: FEC Candidate Loan Repayment Limitation Ruled Unconstitutional in Supreme Court Decision

By Katherine N. Reynolds Dickinson Wright PLLC May 18 , 2022

On May 16, 2022, the United States Supreme Court ruled that limiting the repayment of candidate loans to their own campaign to $250,000 (codified under 52 U.S.C. § 30116(j)) is unconstitutional. The Plaintiffs, Ted Cruz for Senate and Senator Ted Cruz, filed suit against the Federal Election Commission (“FEC”), stating that the repayment limitation unconstitutionally infringes the First Amendment rights of the Senator, the Campaign, and any individuals who might seek to make post-election contributions.

More From COVID-19

Workplace Safety Review: Episode 26 | Interview with Rod Harvey

By Michael T. Taylor Greenberg Traurig June 22 , 2022

In this episode, Mike Taylor and Adam Roseman talk to Rod Harvey, Director of Industrial Hygiene and Field Services for RHP Risk Management Inc.

In Viking River Cruises, US Supreme Court Sides With Employers: Individual PAGA Claims Are Arbitrable - For Now

By Timothy Long Greenberg Traurig June 17 , 2022

In a victory for California employers, the U.S. Supreme Court held in Viking River Cruises, Inc. v. Moriana that the Federal Arbitration Act (FAA) requires enforcement of arbitration agreements that waive an employee’s right to bring a Private Attorneys General Act (PAGA) claim on a representative basis – requiring such claims be brought on an individual basis in arbitration. The Court further held that “PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate [individual arbitration] proceeding.”

GT's The Performance Review Episode 16: Fit Fam: Lifting the Weight of California Privacy Laws (Part 2)

By Philip I. Person Greenberg Traurig June 15 , 2022

Join Philip Person and Ryan Bykerk as they discuss employee privacy with Lauren Green, internal counsel at global boutique fitness brand Barry’s Bootcamp.

Featured Stories
Closeclose
Search
Menu

Working...