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Defuse the 5 biggest telecommuter legal threats

by on
in Employee Benefits Program,Employment Law,Human Resources

Issue: Telecommuters pose unique legal risks, and courts are still figuring out what employers are liable for.

Risk: Complaints and lawsuits over workers' comp, overtime, discrimination and more.

Action: Devise an employee telecommuting policy that covers the five issues described below.

Employment laws surrounding telecommuting are still evolving. For example, a court recently had to sort out this puzzle: If a telecommuting employee works in Florida and her employer's office is in New York, where is she entitled to receive unemployment compensation if she loses her job? No court had addressed that issue before. But a New York court said eligibility depends on where the worker is located, not the employer.

Advice: To help lower your organization's legal risks, devise a telecommuting policy that protects you on these fronts:

  1. Workplace injuries and insurance. Workers' comp cases often hinge on whether an injury is truly "work related," and that's even more difficult to determine with injured teleworkers. Also, what's your responsibility to ensure a safe workplace for telecommuters?
    First, the good news: OSHA has never inspected a home office. That said, even if OSHA liability doesn't exist, exposure to workers' comp liability does. So it's wise to inspect home offices and set home-office safety guidelines. If your telecommuter holds meetings in his or her home office with third parties, make sure your liability insurance covers their injuries, too.
  2. Confidentiality. To protect company information, require teleworkers to maintain separate "work only" areas and keep documents in locked file cabinets. Ask IT to add a layer of security, passwords, etc., to protect the organization's computer network when telecommuters access it.
  3. Wage-and-hour compliance. Monitoring telecommuters' work time is almost impossible. That's why you should give them, especially nonexempt, hourly teleworkers, strict guidelines regarding their work hours.
    Remember, you're on the hook for all hours that nonexempt employees work, regardless of whether you requested or approved such work. You can, however, discipline telecommuters who work beyond the agreed-upon schedule.
  4. Accommodations for disabled employees. Recent guidance from the Equal Employment Opportunity Commission says you must offer disabled employees the same opportunities to work from home that you provide nondisabled employees. Caution: That could mean making exceptions to some of your telecommuting policies. Example: waiving a requirement that employees work for the organization at least a year before becoming eligible to telecommute.
  5. Equal treatment. As with any employee benefit, you must administer telecommuting arrangements in a consistent, nondiscriminatory manner. Best bets: Describe in your telecommuting policy which jobs can and cannot be performed off-site, and that telecommuting arrangements are voluntary.

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