Business - Telecommuting
Article from Columbus Business First

Telecommuting 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 it attractive.

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 their overhead.

According 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 telecommuting creates.

Home-based offices 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.

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.

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.

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:

  • The positions and employees eligible for telecommuting.
  • 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 access.
  • The employer's right to monitor telecommuters' communications.
  • 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.

Selected Web Sites:

Resources and knowledge for mobile workers, tips and advice for telecommuters, home office resources and remote work business traveling information.

Web directory and search engine, featuring a directory of millions of links along with thumbnails of websites.

IHA - Telecommuting Resource Center
The IHA has long been the leading telecommute jobs site, catering to all kinds of kinds of telecommuting employment. Visitors know they don't have to waste time sorting through pages of office jobs to find a few telework jobs.

Microsoft BCentral
Articles that talk about telecommuting workers and tips for developing a telecommuting program for business.

Business Owner's Tool Kit
A document that can be used to evaluate the acceptability of a worker's home office for telecommuting purposes. It also contains a telecommuting agreement that can be used to set forth the terms and conditions under which you will allow a worker to telecommute.

Riley Guide
Information and opportunities of Telecommuting / Work-at-Home, as well as suggestions for Home Businesses.