Telecommuting – The Reality of Employee Expectations – Employee Benefits and Compensation

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Telecommuting is not a new phenomenon. Whether on a full-time, part-time or sporadic basis, telecommuting has been offered voluntarily by employers and, in some cases, required as an accommodation for an employee with a disability for many years. And of course, for many employers, working from home has become a necessity during the pandemic. However, as employers return to more traditional work arrangements, many are faced with employees who want to continue working from home. The push to normalize remote working is not limited to employees, however. Many employers are also taking the initiative to make this option more permanent in an effort to attract and retain talent.

Whether the impetus is driven by the employee or the employer (or both), employers should review their policies and practices to avoid the risks associated with telecommuting. Remote work, like other flexible work options, should be governed by a formal policy that addresses legal issues that can arise with a remote workforce, including the following:

  1. Compensation/hours worked. Hourly employees, both those who telecommute and those who do not, are entitled to overtime pay for all hours worked beyond 40 hours in a work week. One of the attractions of remote work — the flexibility it offers employees — creates a work-scheduling challenge for employers. Employers who allow telecommuting should establish a mechanism to track hours worked and create clear guidelines for employees to follow regarding adherence to work schedules, overtime, etc.

  2. ADA Hosting. For employees who are expected to work on-site, an employer may be required to permit working from home as an accommodation under the Americans with Disabilities Act (ADA), unless it would impose an undue hardship to business operations. The potential health risks associated with on-site work for employees with certain underlying health conditions added new elements to the “disability” analysis.

  3. Selection criteria. Inevitably, there will be situations where an employer will not agree to an employee’s request to work from home. A policy that establishes the criteria used to determine who will be allowed to telecommute is essential in defending against an allegation that the policy is being applied in a discriminatory manner (e.g., favoring younger employees over older employees, favoring a sex rather than another, refusing requests from employees belonging to minorities, etc.).

  4. Data Security and Privacy. Whether an employee uses their own or company equipment, steps should be taken and guidelines established to guard against data breaches and to protect confidential information, including guidelines for the secure destruction of hard copies of documents that can be printed at home.

  5. Tax Considerations. If a teleworker’s home office is in a state other than where the employer’s business is located, the employee and employer should consider whether there will be any adverse tax consequences as a result of such an arrangement.

  6. Work-related injuries and safety. The fact that an employee works from home does not protect the employer from workers’ compensation claims. Employers in most states are responsible for injuries sustained by an employee in the course and scope of employment, regardless of where they occur. Employers should check with their workers’ compensation organization that injuries occurring in an employee’s home will be covered. Employers should also establish reporting procedures and workplace guidelines to minimize the risk of work-related injuries, incorporating any guidelines established by the carrier.

  7. Prevent virtual/remote harassment. While harassment generally evokes inappropriate physical touching or verbal remarks in an in-person workplace, a hostile work environment can certainly exist in a remote workplace. Cyberbullying via email, text, or private group chat, verbal bullying, and inappropriate comments or conduct in virtual meetings can occur and may be actionable even when the conduct does not occur in a place of traditional work. Employers should review (and revise if necessary) their existing anti-harassment policies to ensure they cover behaviors expressed through virtual media and communications, in addition to training managers to look for signs of harassment virtual/remote.

  8. Use of company equipment. When an employee has a company computer, guidelines should be established limiting its use to the employee and only for work-related matters. In addition, either prohibit employees from using personal computers for work or establish strict protocols, including installing anti-virus and anti-malware software, prohibiting downloading of documents, remote erase, etc.

  9. Limitations of Remote Work Features. Questions such as the limits within which remote work can be performed, whether the employee can hold work-related meetings at their remote workplace, etc. must be addressed.

  10. Policy and Agreement. The above issues, plus others that are relevant (contact information, compliance with all company policies, mandatory meeting attendance, paid time off, accessibility, insurance, and the ability to end or change an employment agreement remote) should be addressed in both a telework policy provided to employees and a telework agreement with employees authorized to work from home.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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