Telecommuting: Good for Morale, Bad for Legal Exposure

Telecommuting: Good for Morale, Bad for Legal Exposure

It’s the fourth annual Telework Week in the U.S., a time for organizations and individuals to give telecommuting a try. The group that organizes the week, Mobile Work Exchange, a public-private partnership committed showing the value of telework, has gathered pledges from almost 150,000 people who promise that they will work remotely this week.

Companies have picked up on the benefits of telecommuting—it helps the environment, saves money and gives workers more flexibility in their schedules—but it’s also clear that letting employees work from the couch raises some legal risks for employers.

Deborah Broyles, a partner in Reed Smith’s Labor and Employment Group, told CorpCounsel.com that although telecommuting can give many employees a real morale boost and drive more productivity, companies considering letting workers clock in from home should think carefully about who is allowed to telework, and then craft thoughtful policies and agreements on the subject.

According to Broyles, telework isn’t the right choice for every worker in every industry. Companies, she explained, should use a clear telecommuting policy to explain which departments or teams of workers have jobs that would lend themselves to telecommuting. “You have to see whether that position and the duties of that position can be done with limited supervision, or supervision that you can tailor through this telecommuting policy,” she said. Workers who need to collaborate on projects with other employees frequently, for example, might not be right for telecommuting.

Stating upfront and clearly which jobs are appropriate for telecommuting—and which jobs are not—in the text of the policy, said Broyles, can help lower exposure to a Title VII discrimination claim. Workers might decide to complain if they believe they are not being allowed to telecommute due to discrimination based on gender or race, for example.

Once an employee is cleared for telecommuting—perhaps through a formal request process outlined in the telecommuting policy—Broyles suggests having the employee sign a telecommuting agreement that drills down into some of the specifics of the arrangement and, in doing so, makes it less likely the company will fall prey to legal problems.

Broyles sees potential wage-and-hour and workers’ compensation claims as the “biggest pitfalls” of letting workers do their jobs remotely.

If an employee is nonexempt under the Fair Labor Standards Act, she explained, there’s a danger that, away from the watchful eye of a supervisor, the employee could exceed the 40-hour-a-week maximum allowed to work without activating the requirement for overtime pay. “The agreement should specifically identify how that’s going to be handled,” said Broyles. She added that many employers require telecommuting employees to record the time they work over the computer or phone.

Of course, wage-and-hour problems with telecommuting apply to the FLSA-exempt as well. Sometimes an exempt employee will violate the law’s provisions away from the office, putting their legal status as exempt in doubt.

Workers’ compensation becomes a problem too, because just as workers can get hurt in their place of business, they can also get hurt at home—and employers may be held liable.

Employers should consider using the telecommuting agreement to ask employees to guarantee that there are no potential physical dangers lurking in the home office. “There are some employers who will have a checklist of things to identify,” said Broyles, such as the height of tables used as workspaces. Some employers may also include a provision in their telecommuting agreement that allows the company to examine the home workspace of a telecommuter if the employee is injured working at home and files a claim.

Another problem that employers with telecommuting workers face is that these workers may decide to use personal computers or other devices to do their job. This can be an issue in the event that the employees are dealing with legally protected confidential information, or if their devices are lost or stolen or compromised by a third party. A telework agreement, Broyles said, can address the problem by specifying what level of security that devices employees use for remote work should have, and even whether or not they should use personal devices for work at all. It can also be an opportunity for employees to sign off on letting the company access their devices, should there be any problems.

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