Fenwick’s employment practices chair Dan McCoy spoke with Law360 recently about the trend of companies allowing workers who became remote during the pandemic to move, and the legal pitfalls companies should be mindful of when considering related compensation changes.

McCoy advised that any changes to pay should be consistent across the workforce and based on reliable, quantifiable metrics. “If you're relying upon bad data and bad metrics such that the adjustments are not consistent, that's where you can have pay discrimination," he said.

Cutting pay can be a difficult decision, but McCoy cautioned against trying to "soften the blow" by giving employees who relocate additional benefits to make up for cuts to base pay. Employers could run into legal trouble if some workers get benefits that others don't, he added. "That's the kind of seemingly innocuous change that can also trigger a discrimination claim," McCoy said.

Companies also must be mindful of how a worker's "principal place of business" affects travel expense obligations, according to McCoy.

"Sometimes it's blurry as to where your principal place of business is, especially during the pandemic," McCoy said. "But if the employer makes that commitment and says, 'Fine, you're no longer required to report to the home office' … then any travel from that point beyond is on the employer."

The full article is available through Law360. (subscription required).

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