Does your company allow employees to work from home? Telecommuting can be a great fit for many workers (and their employers). But organizations should consider various implications before going in this direction.
Here, I’ll share 10 potential legal issues related to telecommuting. This isn’t meant to deter any business from using this model. It’s just designed to help you make an informed decision and take appropriate precautions.
1. Timekeeping
Most employers are required under the FLSA or state laws to keep accurate time records of their employees. This is especially true for non-exempt employees who may be eligible for overtime pay when they work over 40 hours per week (or another applicable threshold). Employers must be able to trust their employees working at home to report their time accurately and provide a mechanism for doing so.
2. Meal Periods
Some state laws, such as New York’s, impose mandatory meal period breaks during the workday. These may apply to employees working from home as well as those on the employer’s premises. If so, employers must ensure that their telecommuting employees take the required time off during the day.
3. Overtime
Many companies restrict the amount of overtime their employees work–usually as a cost-containment measure. This may be more difficult to control for telecommuting employees who are out of sight. Nonetheless, if non-exempt employees working from home exceed the applicable threshold, the employer must pay the overtime compensation.
4. Time Off
It can be a challenge to monitor and handle time off for on-site workers. This can sometimes become even more difficult when the employees don’t physically report to work. First, supervisors may not know whether an employee is actually working, so some employees may not use leave time even though they are not doing work when they normally should be. And the opposite can also raise issues. A telecommuter who takes a day off may feel compelled to perform some work while they’re supposed to be on vacation or sick leave. This may raise complications in tracking benefit time and hours worked.
5. Confidentiality
Telecommuting employees often have remote access to company information that on-site workers may not need. Or, at least, they usually have less direct supervision in their use of company data and property. Employers should consider measures to prevent employees from intentionally or accidentally taking or transferring their proprietary information to unauthorized third parties.
6. Security
Even if your employees don’t misuse company information, other nefarious third-parties may seek to do so. Remote data transfer between telecommuting employees and the company’s electronic systems may not be as secure as on-site access. This could be especially true when employees may access company information from outside their homes, such as through public Wi-Fi connections.
7. Discrimination
As with most workplace issues, consistency is important in permitting employees to telecommute. Inconsistent treatment, even if inadvertent, can give the appearance of unfair treatment. This may even give rise to discrimination claims. For example, although well-intended, a company that only allows women with young children to work from home, might be discriminating against male employees. Likewise, an organization that discourages older workers from working from home, but permits younger employees to do so (on the theory that they’re more “tech savvy”) could be engaging in age discrimination.
8. Disability Accommodations
The Americans with Disabilities Act and similar state laws require employers to make reasonable accommodations to qualified employees with disabilities. This could extend to the home workplace. Thus, under some circumstances, employers may need to modify employees’ homes to enable them to work there. At present, however, most employers would probably not be required to allow employees to work from home to accommodate a disability if they do not normally allow telecommuting. This could mean that allowing telecommuting in the first place opens employers to greater disability accommodation responsibilities.
9. Safety
Under OSHA, employers must keep their employees’ workplace reasonably safe. In addition, companies may become responsible, through their workers’ compensation insurance, for telecommuting employees’ injuries occurring in their own homes. As a result, it may be prudent (though not always practical or desirable) for an employer to inspect employees’ home workspaces.
10. Unions
Employees who work from home can still be in represented bargaining units. And unions vary in their approach to whether this is a good idea. Some unions would object to an employer allowing some employees to telecommute. Others may push for the option.
Telecommuting on the Rise
Like unions, employers have different ideas about how effective telecommuting can be. Some embrace it completely, and others reject it altogether. Others are in-between. But, whatever your take, telecommuting is increasingly popular.
A 2017 State of Telecommuting in the U.S. Employee Workforce Report indicates that 3.9 million U.S. employees work from home for at least half of their work time. This is 2.9% of the overall U.S workforce and a 115% increase since 2005.
In this digital era, many employees place tremendous value in having the flexibility to work remotely. Companies that want to attract those workers may need to modify their past approach to telecommuting. But, there remain many industries, such as manufacturing, hospitality, and construction, where much of the workforce must be physically present. Remember that the above issues also apply to traditional work arrangements as well!