Employment Law

AS TECHNOLOGY ADVANCES, the need for traditional office workers to be physically present in the office has decreased substantially. Electronic mail, cellular telephones, personal digital assistants with wireless Internet access, fax machines and the like have all given employees more freedom to conduct business from remote locations. The ease with which business can be conducted in this fashion has, quite naturally, resulted in a rise in the number of telecommuters.

While telecommuting provides many advantages for both employers and employees, there are also a number of potential pitfalls. This article will highlight some of the legal and practical issues that legal counsel should consider when a client is developing a policy to allow an employee to telecommute.

Be Prepared

Even if your client has not yet been presented with a request to allow an employee to telecommute, the company should prepare for the inevitable. There are a number of issues to consider before agreeing to re quests to telecommute.

It is best to have a written policy addressing issues such as the specific positions or types of positions for which telecommuting may be available, any conditions employees must meet to telecommute, and minimum requirements for the home office. In addition, try to anticipate what technical support the company will need to provide to telecommuters. Telecommuting only works if employees have the proper tools and environment to do their jobs.

The client needs to decide in advance such issues as:

• What types of office furniture, equipment and supplies to provide;
• Whether the company or the employee will be liable for theft or damage;
• Whether to give the employee remote access to the company’s Internet service, e-mail and voice mail systems, or network; and
• What types of security systems the company needs to safeguard business.

Comply with Employment Statutes

The main legal issues that relate to telecommuting employees arise under Title VII of the Civil Rights Act of 1964 (Title VII), the Fair Labor Standards Act (FLSA), the Americans with Disabilities Act (ADA), and state workers’ compensation laws.

Title VII. Once the client has a telecommuting policy in place, the employer has to apply it fairly and consistently. If not, it creates the potential for claims that the company would not allow an employee to telecommute because of some type of discrimination. That does not mean the policy must be applied in the same fashion for all employees. It is acceptable to have separate written agreements that contain different terms for different telecommuters. Those different terms, however, should be based on objective factors, such as the nature of the work performed.

FLSA. The FLSA requires most employers to pay the minimum wage and to pay overtime (at the rate of time and a half) for hours worked in excess of 40 per week. One frequently overlooked issue is how to compensate full-time telecommuters who occasionally have to come in to the office. Is the employer required to pay them for the time they spend driving to the office?

The obvious answer is no for exempt employees, but it is not quite as clear for non-exempt employees. In general, employers do not need to pay employees for their regular commute to the office. But if an employee’s work site is his/her home, the drive to the office is not a regular commute. If the issue is not in your client’s policies, or in a specific agreement with the employee, the company should probably pay the employee for the drive time unless the telecommuter is at the office for the entire day. In addition, the employer should require non-exempt employees to track their time worked and submit a weekly timesheet. The policy should also make it clear that overtime must be approved in advance.

ADA. The ADA may require the company to allow a disabled employee to telecommute as a reasonable accommodation. The employer is not required to allow telecommuting, however, if it prevents the employee from performing the essential functions of the job or causes undue hardship for the company. The "essential functions" of a job are usually contained within a well-prepared job description. The client’s periodic review of job descriptions should, therefore, be carried out with this in mind.

EEOC guidance. Earlier this year, the Equal Employment Opportunity Commission released a fact sheet for employers that are considering allowing an individual with a disability to work from home as a reasonable accommodation under the ADA. A reasonable accommodation is any change in the work environment, or in the way things are typically done that allows a disabled individual to perform a job. Not all jobs can be performed from home, but under the right circumstances, allowing an employee to work from home could be one form of reasonable accommodation. This reality makes it even more important for employers to develop a telecommuting policy before the need arises.

Workers compensation. Workers who telecommute are entitled to workers compensation for on-the-job injuries, just as any other employee. The company’s workers-compensation carrier should provide coverage for work-related injuries at a telecommuter’s home. To protect the company from excessive claims, policies should require employees to designate one room as a home office, and tell them what hours they are allowed to work. That helps your client—and the carrier—decide whether or not an injury occurred on the job.

Conclusion

Several years ago, the Occupational Safety and Health Administration (OSHA) created an uproar when it said employers are liable for work-related injuries that telecommuters suffer while working at home. OSHA quickly changed course, announcing that it would not hold employers responsible for the workplace safety of telecommuters after all. While the OSHA uproar has faded, there are sure to be other issues involving employees who choose to telecommute. If your client is properly prepared to deal with the issues raised by telecommuting, most of the potential problems should be avoided.

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