Map Out a Detailed Yet Simple Telecommuting Policy

Before offering telecommuting as a work option, establish clear guidelines for employees so you don’t end up on the defensive or involved in a legal battle.

According to the Bureau of Labor Statistics, 19.8 million Americans, approximately 15 percent of the total workforce, regularly work from home at some point during the workweek. Telecommuting or teleworking is an increasingly popular way for employers to retain talent, expand productivity and lower overhead costs. It’s a work option that also helps employees balance work and family demands.

This magnitude of acceptance for telecommuting has led to certain questions that employers should carefully consider before agreeing to any teleworking arrangement. From a legal standpoint, the main areas of concern are performance, wages, monitoring, the Americans with Disabilities Act (ADA) and safety.

Performance issues. The biggest issue for employers is how to adequately manage a telecommuter’s performance when the employee is not physically in the workplace. Due to the lack of personal contact, managers regularly fail to document and assess any performance issues adequately that may arise with teleworkers, leading to further issues if the employer wants to take disciplinary action, terminate the telecommuting arrangement or fire the employee.

Generally, employers should select for telecommuting only those employees who have an established record of high performance and who have demonstrated their ability to work independently and manage their own workload. Employees with performance problems should not be considered. Also, employees who have not been with the company for at least one year are not proper candidates for telecommuting.

Wage and hour concerns. Telecommuting raises some wage and hour issues for nonexempt employees because employers ultimately remain responsible for accurately recording hours worked, including those worked from home. Another reason why employers must determine whether certain activities require compensation. For example, time spent on meal and rest breaks, training, on-call status and travel to an employer’s facility needs to be categorized as either work hours or merely unpaid time.

Nonexempt employees working from home ideally should be required to track their hours daily through a computerized time-keeping system. But in reality, maintaining accurate records about hours worked relies on the employee’s honor. Therefore, employers should allow only top performers to work from home.

A critical issue with exempt employees is that once they start to telework, their exempt status is often inadvertently jeopardized. Given the lack of personal contact with telecommuters, employers are often tempted to require exempt employees to monitor the hours they work, diminish their duties, assign them task-oriented (as opposed to goal-oriented) responsibilities or limit their decision-making authority. Employers must treat exempt employees the same way they treated them in the office. Otherwise, the employer could face overtime obligations.

Privacy and electronic monitoring. When employees work from home, they often develop a more pronounced expectation of privacy than what traditional employees have. Because employers remain liable for the information disseminated by their employees, employers should obtain consent from telecommuters to access and monitor their home office and computer, especially if the employer provides the e-mail account or Internet service.

Telecommuters, as well as other employees, should sign acknowledgments stating the workplace policies governing the proper use of e-mail and voice mail, as well as copyright and anti-discrimination policies. A signed acknowledgment will help fortify the employer’s defense against any potential liability if, for example, the employee sends sexually harassing e-mails from the home office.

Employers need to further communicate that employees who work from home are still obligated, if not more so, to protect the employer’s trade secret, confidential and proprietary information. While most states have adopted the Uniform Trade Secrets Act, which mandates that employees protect trade secrets, employers should consider having telecommuters execute confidentiality agreements to protect company information that isn’t covered under trade secret status. Another option is to implement tighter security measures, perhaps through password coding, for teleworkers to retrieve sensitive files.

ADA. Although the ADA does not mandate telecommuting for disabled employees, this type of work arrangement may be a reasonable accommodation in certain circumstances—particularly if the employer allows nondisabled employees to telecommute. Also, depending on the disabled employee’s position and job duties, it might be reasonable for an employer to pay for modifications to a home office or for equipment to enable telecommuting.

Although a court will examine each reasonable accommodation request on a case-by-case basis, an employer should not permit any employee to telecommute without first considering the effect this decision will have on a request by an ADA-eligible employee to likewise telecommute. Conversely, if an employer pays for modifications to allow a disabled employee to work from home, employee relations issues may arise if the employer does not likewise pay for similar modifications for a nondisabled employee.

Workplace safety. The Occupational Safety and Health Act (OSHA) does not require inspections of home offices and does not hold employers responsible for injuries sustained while employees are working from home except if an employee is injured while working with job-related hazardous materials. However, because OSHA does not relieve employers from recording all workplace injuries and illness, including those that occur in home offices, employers should require teleworkers to immediately report any incident that does occur.

It’s important to note that workers’ compensation carriers typically will cover occupational injuries that occur in home offices.

Eliminate Headaches: Implement a Policy
Remarkably, only 17 percent of employees have a formal telecommuting arrangement with their employers that addresses the areas of concern explained above. Deciding whether to enter a formal telecommuting agreement with an employee depends largely on the employer’s business needs. In many instances, employers may opt for an individualized approach to telecommuting arrangements as opposed to a formal agreement because it allows the employer the most flexibility in terminating the arrangement if it is not serving business interests.

Regardless, however, of whether a company has a formalized arrangement or makes decisions on an individualized basis, employers need to develop a policy that clearly defines work-from-home parameters before allowing even one employee to telecommute. When preparing a policy that takes into consideration the employment factors described, the following questions should be answered:

  • What jobs are suitable for telecommuting? How many days per week will an employee be allowed to telecommute? Are there certain days the employer will require telecommuting employees to be in the office? Once days for telecommuting are identified, will they ever fluctuate?
  • How long must an employee work at the company before he or she may apply to telecommute? What performance level must the employee achieve to qualify for teleworking?
  • What specific performance expectations does the employer have for the telecommuter? How will the employer evaluate the job performance of the employee who works from home? Will the teleworking arrangement affect compensation or benefits?
  • What training and education are necessary for telecommuters, as well as their managers and co-workers, to prepare for the teleworking arrangement?
  • How will the employer ensure that nonexempt employees properly record their “hours worked?” What safeguards does the employer have against treating exempt employees who telecommute like nonexempt employees?
  • How will the employer protect its confidential information and guard against unauthorized access to the home office? Did the employer address issues involving its right to access a telecommuter’s home computer and equipment?
  • Will the teleworking relationship affect any restrictive covenants with the employee?
  • Do the employer’s insurance policies contemplate protection of materials and equipment that the employee will use and keep in his or her home? For example, will the employer be covered for any loss caused by a fire to the employee’s home? Also, does the employer’s workers’ compensation insurance policy cover work-related illnesses or injuries that occur in a home office?
  • How can the employer terminate the telecommuting arrangement if desired? It is important to include in any teleworking policy a statement that the telecommuting arrangement does not change or alter the fact that the telecommuter is still an at-will employee.

The key to successful telecommuting arrangements is to work through the details well in advance. Adopting a telecommuting policy alleviates many problems that could potentially surface because the employer’s expectations are clearly defined from the beginning.

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