Requires Firms Connect With Policies
David A. Kadela
Telecommuting is not new,
but it has never been more popular. Today's technology makes
it easy, while today's economic and social realities make
No longer do employees
have to meet in an office to conduct business. Instead,
they can work in cyberspace just as effectively as if they
were sitting side-by-side.
Telecommuting gives employees
greater flexibility and control over their work environments,
often increasing their productivity and improving their
morale, while at the same time enabling employers to reduce
to the International Telework Association and Council,
one in five U.S. workers now participates in some
form of telecommuting. The number of telecommuters
increased almost 17 percent last year alone.
While many companies
have jumped on the virtual office bandwagon, they
often have failed to consider the legal issues that
may appear to be a simple solution, but without proper
policies in place, difficult and potentially
costly legal problems can be just a click away.
Workers' compensation covers on-the-job injuries, including
ones suffered while working at home. But was the employee
really working when he slipped on the kitchen floor while
getting that cup of coffee or when she fell down the steps?
workers' compensation claims poses unique problems for employers.
And it is not just employee injuries for which an employer
must be prepared.
An injury to a business
visitor, or even the employee's child, also may expose the
employer to liability.
and hour issues
Telecommuting creates a number of wage and hour issues,
most of which concern non-exempt employees. They include
ascertaining and recording hours worked, enforcing break
and meal periods, monitoring and controlling overtime, and
determining if employees should be paid for time spent on-call
or traveling to a company facility.
To supervise virtual workers effectively, employers must
be able to monitor all online communications, including
e-mail sent and received and Internet sites visited. Depending
upon the employees' functions, an employer also may find
it necessary to monitor telephone conversations. Monitoring
employees who work from home may lead to the interception
of purely personal information. To guard against an invasion-of-privacy
claim, employers must implement a policy expressly permitting
them to monitor the employees' communications and obtain
employees' written consent to be monitored.
For employees who are unable to work at a company's facility
due to a disability, telecommuting is sometimes an attractive
option. Under the Americans with Disabilities Act, employers
are obligated to provide reasonable accommodation to otherwise
qualified employees with disabilities. Does that mean employers
are required to permit disabled employees to telecommute?
Not necessarily. The courts are split on whether telecommuting
is the type of accommodation required under the act. If
requested as an accommodation, employers are advised to
give individualized consideration to the request, and when
in doubt, consult counsel.
Employers that provide telecommuters with confidential information
and access to such information from their homes are often
concerned about the security of the information. To protect
themselves, employers may require telecommuters to enter
into a confidentiality agreement.
Employers using virtual workers in more than one state must
take into account each jurisdiction's employment laws. Privacy,
confidentiality, monitoring, surveillance and other related
laws vary from jurisdiction to jurisdiction. What is lawful
in one jurisdiction may be unlawful in another.
Case for telecommuting
Depending on the nature of an employer's business, telecommuting
may implicate a host of additional issues. Whatever its
business, an employer that permits workers to telecommute
should have a written policy addressing the subject, and
it should require its virtual workers to execute a telecommuter's
This minimizes the company's exposure to
liability, protects its interests and allows it to reap
the benefits telecommuting offers. The policy should cover:
The positions and employees eligible
Telecommuters' work schedules and
responsibility for recording hours.
Telecommuters' responsibilities for
health and safety matters and the employer's right
to inspect the telecommuters' home offices.
Ownership, maintenance and use of
equipment in the telecommuters' home offices.
Conditions of Internet and intranet
The employer's right to monitor telecommuters'
Telecommuters' obligations to maintain
the confidentiality of company information.
Liability for injuries occurring
at the telecommuters' home offices.
Telecommuters' responsibilities to
abide by company policies and procedures.
The employer's right to terminate
its telecommuting program at any time with or without
cause or notice.
With a solid and enforced policy in place,
employers can avoid expensive and time-consuming legal disconnects
along the telecommuting highway.
David A. Kadela is a partner
in the Columbus office of Littler Mendelson.