Telecommuting is popular with employers and employees. Com-panies with telecommuting programs can realize productivity gains, im-proved morale, lower office space rent and reduced.
But you'll also face unique legal risks. And because the trend is still evolving, employment laws surrounding the issue are still playing catch-up.
Latest legal twist: When a tele-commuting employee works in Florida and her company's office is in New York, where should she be entitled to receive unemploymentif she loses her job?
Until this summer, no court had addressed this issue. But New York state's highest court ruled that eligibility depends on where the worker is located, not the company. It remains to be seen whether other courts will adopt the New York rule in unemployment compensation cases, or with other state-provided benefits, such as workers' comp and short-term disability benefits.
5 threats to guard against
Following are five main areas of concern for employers with telecommuting programs and advice on how to neutralize them. Your telecommuting agreement with employees should cover at least these issues:
1. Workplace injuries and insurance. Whether an injury is truly "work-related" is often litigated in workers' compensation cases. And this becomes exponentially more difficult to determine in a case involving injured teleworkers.
What if an employee is injured while walking downstairs in his home during work hours? How could you prove the employee was not, as he alleges, going downstairs to retrieve office supplies, but instead was carrying a basket of laundry? Obviously, the risks of fraudulent workers' comp claims increase.
And what's your responsibility to ensure a safe workplace for telecommuters? First, the good news:
The Occupational Safety & Health Administration (OSHA) has never inspected a home office. That said, even if OSHA liability doesn't exist, exposure to workers' comp liability does. So you'd be well-advised to inspect employees' home offices and issue guidelines about home-office safety requirements.
What if your telecommuter holds meetings in his home office with third parties, such as vendors or customers? Your liability insurance should cover injuries incurred by those "business invitees." Likewise, your insurance policy should cover employer-provided home office equipment as well. Most homeowners insurance policies do not offer such coverage.
2. Confidentiality. Once a document leaves your office, you don't have the same level of control over it. To ensure confidentiality, require teleworkers to maintain separate "work-only" areas, lock all documents in file cabinets and add a layer of security when accessing the company's computer network from home.
3. Wage-and-hour compliance. Monitoring an employee's actual work time is difficult enough when the employee works under your roof. But it's almost impossible when they're working off-site. That's why telecommuters, especially nonexempt, hourly employees, need strict guidelines regarding work hours.
Remember, you're on the hook for all hours that a nonexempt employee works, regardless of whether you requested or approved such work. But you can hand down discipline for telecommuters who work beyond the agreed-upon schedule.
4. Americans with Disabilities Act. Recent EEOC guidance says you must offer disabled employees an equal opportunity to participate in telecommuting programs. This could mean making exceptions to your telecommuting policies for disabled employees.
Example: According to the EEOC, you can require that employees work at least one year before becoming eligible for your telecommuting program. But if a new employee needs to work at home because of his disability, and the job can be performed at home, then you may have to waive your one-year rule.
5. Disparate treatment claims. Telecommuting programs, like other employment conditions and benefits, must be administered in a consistent, nondiscriminatory manner. In one case, a federal appeals court in California said that denying an employee's telecommuting request may be considered an "adverse action" for Title VII purposes.
Best bet: Make clear which jobs can, and can't, be performed off-site. Make your telecommuting program voluntary. Include these details in the employee's agreement. (See box above.)
Jonathan Landesman practicesat the Philadelphia firm of Cohen, Seglias, Pallas, Greenhall & Furman P.C. and is a YATL adviser.
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