Law in the Marketplace: Remote employees — are they worth the legal risk? - Concord Monitor
Starting in 2021, the number of New Hampshire remote workers has grown exponentially because of Covid, and many New Hampshire employers have increasing permitted their employees to work remotely — i.e., from their homes — unless their working in the employers’ office is indispensable.
But what if a potential employee’s home is not in New Hampshire and the potential employee doesn’t want to move to New Hampshire? This situation may arise because of personal or family concerns of the employee or because of the $440,000 mean sales price for New Hampshire single-family homes and the lack of affordable rental options in New Hampshire.
If you’re considering hiring such an employee, you need to know the legal risks in doing so. Below is an overview of a few of these risks and how to address them.
This column is based in part on an excellent recent article in the New Hampshire Bar News by Brian Bouchard of Sheehan Phinney, a New Hampshire lawyer who handles, among other things, employment litigation. You can contact Brian by phone at (603) 627-8118 or by e-mail at [email protected]. However, the responsibility for any errors in this column is mine alone.
In this column, I’ll assume for concreteness that the remote employee in question is a woman named Mary Jones and that Mary resides and will work for you from her Illinois home.
■Your biggest risk in hiring Mary will probably be that if your employment relation with her doesn’t work out, she will file an employment claim against you in an Illinois court. Such a claim may arise on many different grounds, but her two most likely claims may be that you’ve unfairly terminated her or that you’ve discriminated again her on the basis of her race, gender religion or other protected trait.
■Regardless of the validity of Mary’s claim, you’re going to have to hire an Illinois lawyer to respond to it; and even assuming if that this lawyer persuades the Illinois court to dismiss her claim, your legal fees are likely to be, at a minimum, several thousand dollars. So the first question you must ask in deciding whether to Mary is whether you are willing to accept the costs and administrative burdens of an Illinois lawsuit.
■The second question is whether, if Mary does make an employment claim against you in Illinois, the court will dismiss her suit. This will depend on whether the fact that she has worked for you in Illinois is merely “accidental” to her employment for you or whether, instead, you have somehow purposely availed yourself of her Illinois location. A court might find “purposeful availment” if, for example, you intended Mary’s location in Illinois to facilitate your obtaining Illinois customers or to engage in Illinois production.
■However, the above “accidental-vs.-purposeful” issue is only one of the issues that may turn out to be crucial in Mary’s suit against you. What this should tell you is that before you hire Mary, you should seriously consider retaining an Illinois employment lawyer to advise you on how to go about recruiting Mary and what Illinois employment rules you should be aware of in your ongoing relationship with her.
■However, if you decide to hire Mary, you should consider doing so on the basis of a written employment contract that contains a “forum selection” clause under which, if she ever sues you, she may do so only in a New Hampshire court. And obviously, this clause must be valid not only in New Hampshire but also in Illinois.
Finally, you should also ask your Illinois lawyer what measures you should take to avoid the possibility that Mary’s work for you in Illinois will result in a suit against you by an Illinois third party claiming that her work for you has injured that party.
John Cunningham is a lawyer licensed to practice law in New Hampshire and Massachusetts. He is of counsel to the law firm of McLane Middleton, P.A. Contact him at 856-7172 or [email protected]. His website is llc199a.com. For access to all of his Law in the Marketplace columns, visit concordmonitor.com.
Law in the Marketplace is a legal advice column. It runs every week in the Sunday Business section. The author is a lawyer in Concord and not a member of the Monitor’s staff.
source: https://www.concordmonitor.com/Law-in-the-Marketplace-46013951
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