|June 5, 2008|
Previously published on May 14, 2008
More and more employers are allowing their employees to telecommute because telecommuting provides more flexibility in performing job duties, assists employees in balancing work with personal responsibilities, and protects the environment by reducing commuting time. Telecommuting also enables employers to expand their service hours, reduce absenteeism and tardiness, and increase the pool of available labor. Of course, along with all the benefits of allowing employees to telecommute, employers must also examine the various legal concerns that arise when employees are permitted to telecommute. Below is a list of ten key legal issues employers should consider before permitting employees to telecommute.
1. Wage and Hour Compliance: Employers should consider how they will properly report and record the hours of its telecommuting employees.
One of the most obvious concerns raised when employees telecommute is an increased risk that employees who are not exempt from the Fair Labor Standards Act’s overtime requirements will accrue overtime hours for which they are not paid time-and-a-half as required by law. The problem is that it is inherently more difficult to monitor actual work hours when an employee works off-site. Certain precautionary measures can be taken to reduce the chances of an unpaid overtime violation, such as requiring non-exempt telecommuters to sign an agreement acknowledging that they are not permitted to work overtime without prior written management approval, and requiring these employees to clock in and out via e-mail or telephone.
2. Workers’ Compensation: Employers should consider how they will investigate workplace injuries associated with working at home.
When a telecommuting employee becomes injured at home, it can be very difficult to determine whether that injury is compensable under the law because the analysis is extremely fact specific and usually requires a case-by-case assessment. While there are usually witnesses to on-the-job injuries, there will often be no witnesses to an injury that occurs at a telecommuter’s home, making it nearly impossible to determine precisely if the injury occurred in the course and scope of the employee’s job. Depending on the circumstances, it may be helpful to investigate a work injury reported by a telecommuter, including the place where the injury incurred. Before doing so, however, employers should obtain written permission from the employee. Indeed, conscientious employers may want to inspect telecommuter home offices periodically for safety and ergonomics.
3. Occupational Safety and Health Act (OSHA): Employers should consider how they will properly record work-related injuries for their telecommuting employees.
Most employers are required by OSHA to keep records of work-related injuries and illness. Employers who allow telecommuting must create a policy to properly record work-related injuries that occur at a telecommuting employee’s home office. While OSHA has stated that it does not expect employers to inspect the home offices of telecommuting employee, OSHA has also indicated that it will inform an employer if it receives a complaint from an employee who works from home. Thus, employers should ensure that telecommuting employees comply with workplace safety policies, especially if hazardous substances are being used.
4. Liability Coverage: Employers should consider obtaining proper liability insurance.
Employers generally have primary responsibility for injuries to third-parties and damage to property that are caused by employee negligence. This is especially the case if the damage occurs on the employer’s property. Whether the same is true for damage or injury occurring at the home of a telecommuter is not as clear. For example, who should be held responsible if a courier slips on the steps of an employee’s home while delivering a work-related package? What if the courier is bitten by the employee’s dog while attempting to deliver the package? To protect themselves from such claims, employers should make sure that their liability insurance covers the employee’s home whenever it is being used for the employer’s business. Requiring telecommuters to maintain homeowner’s or renter’s insurance is also a good idea.
5. Trade Secrets and Confidential Information: Employers should consider how they will protect their confidential information and trade secrets when telecommuting employees are permitted access to this information.
In an effort to improve telecommuter productivity, employers may be inclined to give telecommuting employees broad access to computerized company information which can be accessed from remote locations using a personal computer. Giving telecommuters this type of unrestricted access to information increases the risk of unauthorized disclosure or misappropriation. Employers should take some precaution to track the information employees are using and the information they produce from home. Efforts should be taken to protect this information to the same extent that information stored and produced at the employer’s premises is protected. Depending on the circumstances, employers may also want to require telecommuters to sign a nondisclosure or confidentiality agreement.
6. Tax Concerns: Employers should consider whether any tax concerns or issues are raised by the telecommuting employee’s location.
If the telecommuting employee lives in a state other than where the employer’s office is located, an employer must determine where taxes will be owed. Tax laws also may affect the extent to which an employer decides to reimburse a telecommuting employee for mileage. For instance, will an employer reimburse a telecommuting employee who travels for work to a destination that is closer to the employee’s home than the office?
7. Zoning: Employers should consider whether local zoning laws prevent or restrict an employee from working at home.
Many cities have zoning laws that limit or restrict the operation of home businesses. In most cases, the law requires that, in order for home businesses to operate, they must obtain a permit or a license. Under these circumstances, employers should consider whether the employer or the telecommuting employee will be responsible for obtaining and paying for the required home office permit or license.
8. Privacy Issues: Employers may consider asking the employee to consent to monitoring or access to the employee’s home workspace.
9. Americans with Disabilities Act (ADA): Employers should consider whether they are obligated to provide telecommuting as a reasonable accommodation for an employee’s disability.
A telecommuting arrangement may be considered or provided as a reasonable accommodation to employees who have a disability under the ADA that prevents them from performing their job or parts of the job at a traditional work location. A telecommuting arrangement is not required if doing so would eliminate an essential job function of the employee’s position or create an undue hardship. Thus, if the very nature of the job requires the employee to be present at the employer’s work location, telecommuting would not be a reasonable accommodation. Of course, as employers expand telecommuting opportunities for their employees, they will find it difficult to argue that permitting a disabled employee to telecommute as an accommodation serves to create an “undue hardship.” Similarly, if employers are selective in choosing those individuals who they will permit to telecommute, care must be exercised in order to ensure that they are not discriminating against individuals due to their disability or perceived disability.
10. Discrimination Issues: Employers must be careful to administer their telecommuting policies in a non-discriminatory manner.
In determining which of their employees will be allowed to telecommute, employers should remain mindful of the potential ramifications concerning federal and state employment discrimination laws. Employers should take precautions not to administer telecommuting policies in a manner which can be construed as discriminatory – e.g. by allowing a woman to telecommute but not a similarly-situated man. Because certain jobs may be largely occupied by persons within certain protected categories, exclusion of such job classifications from a telecommuting program should be based on well-reasoned legitimate business criteria. Employees should be advised that being allowed or required to telecommute does not alter an employee’s terms and conditions of employment, except in certain, specified ways. A telecommuting employee’s wages generally should remain unchanged and insurance and other fringe benefits should also continue at the same level and in the same manner as if the employee was not telecommuting. Ultimately, by keeping the same conditions of employment for telecommuters as non-telecommuting employees, employers can prevent claims of unfair and discriminatory treatment.
Before permitting employees to telecommute, employers should consider the ten legal issues outlined above. Employers are also well-advised to develop a written telecommuter agreement advising telecommuting employees of their responsibilities and requiring them to commit to certain performance band behavioral expectations. The agreement can include provisions on just about any concern the employer deems important, including, but not necessarily limited to, issues discussed above. In most instances, telecommuter agreements should at least include the following:
- a statement that telecommuting is a privilege, not a right, and the telecommuting arrangement may be terminated at any time;
- a statement that the teleworking agreement does not change the employer’s policies, expectation, compensation or benefits, except as provided in the agreement, and that nothing in the telecommuting agreement should be construed as a contract of employment;
- a statement spelling out the telecommuter’s responsibility to devote working time to work, and not be distracted by personal commitments;
- a description of the employee’s work schedule (especially if the employee will be spending some time in the office and some at his or her home office);
- the right of the employer to make reasonable visits to inspect the worksite for safety;
- an acknowledgment of the employee’s responsibility for ensuring a safe work environment, reporting any work-related injuries, and (if applicable) insuring against injuries to third-parties on the employee’s property; and
- an acknowledgment that all work product belongs to the employer.
With these terms in place, a telecommuting program may be undertaken that will be beneficial to both the employee and the employer.