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The Law of Telecommuting

The Law of Telecommuting (Webinar Recap)

On December 13, 2018, I presented a complimentary webinar called “The Law of Telecommuting.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

Click here for the webinar replay.

In the webinar, I discuss:

  • Telecommuting Trends and Statistics
  • Legal Concerns Related to Telecommuting
  • Telecommuting Policies and Agreements

The webinar goes over 10 different legal areas ranging from timekeeping and overtime to safety, security, and union issues.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “The Law of Telecommuting”

Telecommuting continues to grow in the United States. Many employees prefer the flexibility working from home affords. And some employers recognize cost savings by having employees work remotely.

This webinar describes some workforce trends related to telecommuting and then points out a number of legal issues that can arise. These include:

  • Timekeeping
  • Meal Periods
  • Overtime
  • Time Off
  • Disability Accommodations
  • Discrimination
  • Confidentiality
  • Security
  • Safety
  • Unions

If you already have employees who work from home, this webinar will help you improve your compliance. And if you are considering whether to allow employees to telecommute, you’re in the right place too!

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Telecommuting Trends

Telecommuting Trends & Statistics

Maybe you call it working from home, mobile work, remote work, or even telework. Technically, experts define “telecommuting” as the substitution of technology for commuter travel. In other words, rather than drive, carpool, or take public transportation to a facility controlled by their employer, employees use telephones, computers, the Internet, etc. to work offsite (often at home or perhaps at a coffee shop). We’ve already posted a quick checklist of legal concerns for employers on this topic. Here we’re focusing more on the bigger picture to share some telecommuting trends and statistics that employers should keep in mind.

[Want to learn more? Click for our FREE webinar on “The Law of Telecommuting”.]

Telecommuting Demographics

Let’s start with some overall numbers (for the United States).

According to the 2017 State of Telecommuting in the U.S. Employee Workforce report by Global Workplace Analytics  and FlexJobs: “Regular work-at-home, among the non-self-employed population, has grown by 140% since 2005, nearly 10x faster than the rest of the workforce or the self-employed.”

From 2015 to 2016, the number of telecommuters increased by almost 12%.

Larger companies are more likely to permit employees to telecommute than smaller ones, but only 7% of U.S. employers offer flexible workplace options.

While men and women are about equally likely to work remotely, telecommuting is more common among employees over 35 years old. Perhaps surprisingly, it is most prevalent among Baby Boomers. For a number of reasons, not having to travel to work on a regular basis allows people to remain in the workforce longer.

Workers with higher levels of formal education (those with bachelor’s or graduate degrees) are more likely to telecommute.

On average, telecommuters earn about $4,000 more per year than non-telecommuters (among workers making $100,000 or less annually). And a majority of them work more than 40 hours per week.

Geographic Factors

Per the 2017 State of Telecommuting report: “In more than half of the top U.S. metros, telecommuting exceeds public transportation as the commute option of choice. It has grown far faster than any other commute mode.”

Overall, small and mid-sized cities appear to utilize more telecommuting than larger cities.

Interestingly, the top 5 telecommuting metro areas all feature prominent public universities:

  1. Boulder, Colorado – 8.5% of workforce telecommutes (University of Colorado)
  2. Corvallis, OR – 6.9% (Oregon State University)
  3. Raleigh, NC – 6.2% (North Carolina State University)
  4. Charlottesville, VA – 5.5% (University of Virginia)
  5. Austin-Round Rock, TX – 5.4% (University of Texas)

Other large metro areas with a relatively high percentage of telecommuters are Denver (5.1%), Tampa-St. Petersburg (4.8%), Atlanta (4.6%), and San Diego (4.5%).

Telecommuting has grown the most in the Northeast and very little in the Southeast. Located between those regions, Chattanooga, Tennessee experienced the highest percentage growth of telecommuting from 2005-2015 at 325%.

Telecommuting Trends by Industry

Telecommuting is not limited to information-based industries. The largest share of telecommuters (17%) occurs in the professional services industry, followed by healthcare and social assistance (11.6%) and finance and insurance (9.7%). But manufacturing has the fourth highest percentage of telecommuters (8.5%).

Looking Ahead

It does not look like these telecommuting trends (i.e., gradual growth across industries) will significantly reverse themselves any time soon.

There are some anecdotal reports of companies bringing telecommuters back into the workplace. And data from the Bureau of Labor Statistics showed a small drop in the percentage of U.S. workers who worked at home from 2015 to 2016. But that number rebounded in 2017.

There are some relatively extreme growth projections out there. Here’s one predicting that 30% of U.S. private sector workers will telecommute by 2019! Here’s another claiming that 50% of the U.S. workforce will work remotely by 2020!

In sum, the American workplace will continue to change dramatically (as it always has). Many jobs no longer need to be performed on-site. Some people are great employees but logistically can’t make it to work every day. At the same time, some businesses can accommodate telecommuting and others can’t. And there indeed are valid concerns, tradeoffs, and obstacles in many situations.

If these telecommuting trends intrigue you regarding your business, make sure to learn more through our free webinar: “The Law of Telecommuting”.

FMLA Recordkeeping Requirements

FMLA Recordkeeping Requirements

The federal Family and Medical Leave Act (FMLA) affords some employees job-protected leave from work under qualifying circumstances. This includes up to 12 weeks of leave per year for the employee’s own or certain family members’ serious health conditions, birth or adoption of a child, and military-related exigencies. As complex as the FMLA is for determining who is entitled to what leave, it’s no surprise there can be a lot of “paperwork” involved. This post looks at the FMLA recordkeeping requirements to help employers avoid compliance issues.

FMLA Recordkeeping Components

Covered employers who have eligible employees must maintain records showing:

  • Basic payroll and identifying employee data
  • Dates of FMLA by FMLA eligible employees
  • When employees take FMLA leave for less than a full day, the hours of the leave
  • Copies of employee leave notices furnished to the employee under the FMLA (may be maintained in personnel files)
  • Any documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves
  • Premium payments of employee benefits
  • Records of any disputes between the employer and an eligible employee regarding designation of leave as FMLA leave

Form of FMLA Records

The FMLA does not require employers to use any specific format or organization method in satisfying the FMLA recordkeeping requirements. Except, employers must maintain any records relating to medical certifications or medical history pertaining to FMLA leaves as confidential medical records in separate files from the regular personnel files. Such records might also be subject to confidentiality requirements under the Americans with Disabilities Act (ADA).

FMLA recordkeeping can be electronic rather than in paper form.

Employers must retain the necessary records for at least three years and make them available for inspection, copying, and transcription by the U.S. Department of Labor upon request.

U.S. Department of Labor Involvement

Employers don’t have to submit their FMLA recordkeeping documents to the DOL or any governmental agencies as a matter of course.

The DOL may request to review an employer’s FMLA records up to once a year. Or more often if the DOL has reasonable cause to believe a violation of the FMLA exists or it is investigating a complaint. In fact, the DOL does not usually seek these records unless an employee has filed a complaint.

Audit Your FMLA Records

The FMLA has been around for 25 years. Most covered employers are familiar with it to some extent, but, honestly, few have yet mastered it. It’s one thing to address leave requests on a case-by-case basis. But it’s even harder to remember all the administrative nuances.

FMLA recordkeeping is probably an afterthought in most organizations. And, admittedly, few employers will suffer consequences from occasional recordkeeping mistakes. But the ones who do face scrutiny will wish they had been proactive in reviewing and updating their compliance in this area.


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