Workplace safety
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?

Defending telecommuters' 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.

Wage 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.

Privacy
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.

Accommodation
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.

Confidentiality
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.

Jurisdictional issues
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 policies
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 agreement.

This minimizes the company's exposure to liability, protects its interests and allows it to reap the benefits telecommuting offers. The policy should cover:

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.