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Gas pains: Implemented properly, telecommuting can be win-Win

by on
in Employment Law,FMLA Guidelines,Human Resources

Telecommuting could help employees cut commuting costs during this period of high gas prices. With the right kind of phone and computer equipment, many workers can do their jobs as effectively from home as they can from their usual work sites.

Employers benefit from increased productivity and lower absenteeism, higher retention rates and better employee morale. For employees, telecommuting reduces transportation costs and allows better balance between personal responsibilities with work demands.

Although telecommuting has its advantages, employers need to consider the legal consequences before implementing this alternative work arrangement.

Working overtime at home

First, employers should consider whether telecommuting is a good fit for nonexempt employees. Because nonexempts are usually paid hourly, employers must have an effective method for recording the hours they work.

Under the Fair Labor Standards Act, nonexempt employees receive time-and-a-half pay for any hours worked over 40 in a workweek. To avoid overtime violations, employers should implement an automated call-in or log-in system in which employees remotely clock in and clock out at the beginning and end of their shifts. Telecommuters should be required to receive authorization before working overtime. Employers should also provide clear guidelines regarding holidays and leave use.

Safety and workers’ comp

The Occupational Safety and Health Act requires employers to keep records of work-related injuries. Employers should create a policy that provides guidelines for telecommuters to report any such injuries.

Injury reporting is critical for workers’ compensation as well. Generally, any injury occurring in the course of employment is compensable, even if it takes place off site. Therefore, employers should prepare for an increase in claims that may be difficult to dispute.

Additionally, employers could potentially face claims from third parties such as employees’ family members. One solution: Have telecommuters indemnify employers against third-party claims.

Beware discrimination

Telecommuting may be a reasonable accommodation for employees who are covered by the ADA. Although employers are not required to allow covered individuals to telecommute, it is certainly an option.

However, an employer that cannot otherwise afford telecommuting does not need to allow a disabled employee to work from home if it would create an undue hardship.

To avoid discrimination charges, employers should develop a consistent policy governing who may and may not telecommute. The policy should explain the minimum worker qualifications necessary for a worker to be eligible for telecommuting, including:

  • Length of time of employment
  • A record of favorable evaluations
  • A good attendance record.

Employers should clearly identify the positions that are eligible for telecommuting, as well as those that are not. Telecommuting work schedules should match business needs. Telecommuting employees must be available during business hours and understand they are still working a defined schedule. The policy should include a statement that the employer may terminate any telecommuting arrangement at any time. Have employees sign statements agreeing to abide by the company’s telecommuting policy.

Know the local laws

Some cities and towns have laws prohibiting or limiting work at home. Employers should investigate state and local laws concerning zoning, licensing and building codes to determine whether they apply to telecommuting.

Keeping in touch

Employers can keep telecommuting employees from feeling isolated by requiring them to work in the office a few days every week or month. This reinforces the social aspects of work and helps keeps telecommuters focused on the company’s expectations.

Telecommuting offers many advantages, but employers must make sure the arrangement meets the company’s needs without creating greater liability.
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Special thanks to Ebony Reid for her invaluable contributions to this article. Ms. Reid, a summer associate in Ogletree’s Indianapolis office, has just completed her first year of law school at the University of Illinois College of Law.

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