Remote, offshore, virtual…The New World of Staffing
Do you know the legal ins and outs of remote staffing?
To start, let’s attempt to define the various categories of folks who do not work within the four walls of your office.
All these different staffing positions are correctly classified as remote. The term virtual has also gained popularity. One of Webster’s definitions of virtual includes “occurring or existing primarily online”. Fitting, but if applicable, may define most of our lives. In reality, the terms may be interchangeable, but I prefer remote. The real issue is the nature of the relationship with the remote worker. We currently have three options:
- An employee of the practice,
- An employee of a staffing agency, or,
- An independent contractor arrangement.
The legal HR issues for these three options are very different. The privacy and security obligations are no different.
Human Resource Issues
A remote worker inside the US can clearly be an employee of the practice. Whether they work remotely across the street or in another state, the legal obligations surrounding that relationship are no different from those of an employee clocking in at your address. The policies in your employee manual apply the same, although some issues, such as monitoring hours, surveillance, and some benefits issues, can vary. Remember, there can be exceptions to that relationship if the remote employee is in a different state, as the remote state’s HR laws can come into play.
For overseas employees, US labor laws do NOT apply. The employee’s rights are determined by the laws of their country, which could be a potential sticking point. Employee laws in foreign countries can be very different than those in the US – just a few differences include significant employee tax liabilities, overtime laws, mandated time off, and restrictions on hours worked per day. Many countries require that for you to employ someone in that country, you must be registered as a legal entity IN THAT COUNTRY. Failure to comply with local employment laws in a foreign market will result in significant penalties and fines. It is not advisable to hire overseas employees independently–it is best to work with a reputable staffing agency that has a legal presence in the country of the overseas employee and understands the legal obligations associated with that relationship.
That leaves the option of independent contractor status. Classification of independent contractor status in the US is highly technical and is becoming increasingly scrutinized by Washington. Generally, it is rarely applicable to staff positions in a healthcare office. In foreign countries, it is essential to understand the legal obligations under their laws regarding independent contractor status. These common laws vary from country to country and can be very grey. Even the Philippines, considered one of the most employer-friendly countries, has specific laws related to the classification of independent contractors and their relationships with them. In Mexico, misclassification can result in fines as high as 5000 times the minimum wage. In a word…beware! There are also specific regulations and forms issued by the IRS that must be followed.
Best advice? I would avoid foreign independent contractors. Choose this option only upon the counsel of an international tax or human resources attorney. Seek out a company that is a true staffing agency. The employee works for them, and they are aware of and comply with the laws of the countries where their employees reside. They provide a legal staffing relationship with you while taking care of all employee obligations. This relationship is the simplest alternative and checks off the most “legal” boxes.
Privacy and Security Issues
Here is where the law is no different. Whether handling patient information in Idaho or Brazil, the covered entity has the same legal obligation to protect patient privacy. Inside your office, you definitely have more direct control over privacy issues – staff are working with YOUR computers, your network, and under your privacy policies. When dealing with overseas workers, you must go above and beyond to ensure their workstations are secure and the remote connections utilized are all HIPAA compliant. Supplying their devices and particular software, internet, and remote connection provides you the most control. Most companies will tell you they have trained their workers in HIPAA, but it is essential that you train them on your specific privacy and security policies. Technology has undoubtedly made all this possible, but once again, the staffing agency can be helpful with mandating and monitoring privacy standards, as well as remote worker training. Definitely work with your compliance company and IT consultant on this!
The use of remote workers can offer many benefits to your practice. Ensure that these relationships are fully compliant with both US and foreign employment laws, and that all activities prioritize maintaining the confidentiality of patient information.
If you have specific questions, feel free ot reach out to us: info@PracticePerformancePartners.com