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Got off-site workers? Heed these 6 important legal risks

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in Employment Law,HR Management,Human Resources

by Maureen Q. Dwyer, Esq.

Although the idea of allowing em­­ployees to work from home, at clients’ sites or at remote locations isn’t new, it is gaining popularity as gas prices remain high and commuting times to the office increase.

Fast and reliable technology enables telework. The right employees—matched with the right jobs—make telework effective.

But beyond choosing the right positions for telework, employers must address important legal issues before adopting a telecommuting policy.

If you are considering allowing telework for some of your employees, be prepared to consider how such a policy will be affected by the Fair Labor Stand­­ards Act (FLSA), the Occupational Safety and Health Act (OSHA), the Americans with Disabilities Act (ADA), workers’ compensation rules, privacy concerns and tax laws.

1. Fair Labor Standards Act (FLSA)

Currently, exempt employees hold most telecommuting jobs. That eliminates many wage-and-hour record-keeping duties. However, you still need to keep accurate and reliable records of em­­ployees’ hours worked—especially for nonexempt workers—in order to calculate overtime.

Employees working at home may have more distractions, such as telephone calls or visits from friends, which complicate tracking hours worked. Be very careful to prohibit employees from working unpaid hours, unpaid overtime and “off the clock” work in order to avoid liability for uncompensated time.

2. OSHA safety hazards

Although a decade-old OSHA directive limits employers’ potential liability for safety hazards in an employee’s home office, (OSHA Directive No. CPL-2-0.125), employers still must keep records of all work-related injuries, no matter where they occur. (29 CFR Part 1904.5(b)(7))

Consider offering to inspect home offices for potential safety problems if you are concerned about liability for work-related injuries.

3. ADA liability

Many courts have held that offering telecommuting is a reasonable accommodation for employees’ disabilities under the ADA. Courts have also ruled that certain jobs are not conducive to the accommodation of telecommuting, such as the jobs of coding clerk and claims adjuster.

If a disabled employee asks to work from home as an accommodation, follow your regular process to evaluate the reasonableness of the request.

This evaluation process is especially important if you permit telecommuting by other employees. Be sure to discuss the specifics of how the employee plans to perform the job from home, the need for supervision, the impact on productivity and the equipment needed.

4. Workers’ compensation

Allowing employees to work at home or at a remote location does not shield employers from workers’ compensation issues. Employers in most states are liable for injuries that occur to an employee in the course and scope of employment.

Require employees to follow procedures for promptly reporting any work-related injury, no matter where it occurs. If you are a multistate employer, determine whether you need workers’ compensation insurance coverage in each state where employees work at home.

5. Information security issues

Employers rightly worry about protecting proprietary and sensitive data when employees work remotely. As the number of telecommuters increases, the chance for unauthorized access to company data also grows.

Make plans to monitor teleworkers’ access and use of company data, but be careful to avoid invading the employee’s privacy.

Word your security policy to make clear it applies to home-office situations. Remind employees that they are subject to the company’s policies governing electronic communications, email, voice mail and use of the Internet while they are working on company-owned equipment or are connected to your communications systems and networks.

6. Income taxes

Telecommuting and telework may create unexpected state tax issues.

This is especially true if someone’s home office creates a physical business presence in a state you had not previously operated. There also may be federal tax issues, such as taxable fringe benefits or home-office deduction rules for employees.

Check with your tax advisor to find out how telework may affect your organization and your teleworkers.

Draft a written policy

If you decide to permit telework, you should develop a written telecommuting policy.

This policy should:

  • Define telework and telecommuting
  • Clearly identify eligibility criteria
  • Explain the employee’s responsibilities to the company
  • Establish specific work hours, time-keeping and record-keeping requirements, security and data protection measures and the ownership of equipment.

Author: Maureen Q. Dwyer is an associate in the Labor and Employment Group of Pepper Hamilton LLP (www.pepperlaw.com). Contact: dwyerm@pepperlaw.com.

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