Ashley Shaw

The Legal Considerations of Allowing Telecommuting

Telecommuting is growing by leaps and bounds in this day and age, and it is no wonder. There are a lot of benefits to employers for allowing employees to work from anyplace they so choose.

An Overview of Telecommuting Practices

As I already mentioned, telecommuting is huge in this day and age. But just in case you don’t believe me, let’s look at some facts proving this.

In today’s work environment, more and more companies are going completely remote. Take a look at any of these for examples:

  • We Are Mammoth;
  • UltraViolet;
  • Compose;
  • 10Up; and
  • DuckDuckGo.

In fact, Flex Jobs, which specializes in helping workers find less traditional roles, published an article listing 125 such companies.

However, that is not all. In 2015, Gallup’s annual Work and Education poll found that 37% of employees say they have at some point or the other telecommuted. That number was just 9% in 1995.

Other stats from that same survey suggest the following:

  • The average worker telecommutes twice a month.
  • Even when they regularly go into the office, many workers still ‘telecommute’ in a less traditional sense by logging in after hours or on the weekends.
  • Most people say telecommuters are just as productive as traditional workers.

The Benefits of Allowing Telecommuting in Your Office

Think about just a few of the benefits you can gain by allowing your workers to work from anywhere they so choose:

  • Less time off. If workers can work remotely, then they have less of a reason to take off when they go out of town for a day or two to do something, such as visit family when the family is also working.
  • Less of a concern of natural disasters. Natural disasters, such as a hurricane, can be devastating for businesses, especially small to medium business. When your entire workforce is shut down for days or weeks at a time, then you may have trouble recovering. However, if workers can do their jobs from home, then at least some business practices may be able to continue while the storm rages on.
  • Better pool of employees. When you open your hiring practices to anyone, then you are potentially allowing your pool of candidates to grow. If the best candidate for the job lives ten states away, do you really want to lose him or her because you want people in the office?
  • Morale. Work-life balance is an important aspect of many employees’ job satisfaction ratings. Offering telecommuting options, at least on an as-needed basis, makes achieving that work-life balance a lot easier. And happier employees are more productive employees, so you win too.

The Potential Pitfalls of Allowing Telecommuting

These are just some of the benefits you could find by allowing telecommuting in your office. However, before you jump up and start implementing a policy that will eventually turn your office fully remote, make sure you take a minute or two to evaluate some of the potential legal pitfalls of allowing telecommuting in your office.

Because while the benefits to allowing this are great, the legal liability you could face if you do it incorrectly is also looming large.

Here are some of the concerns you should have, each of which will be discussed in more detail in a second:

  • How Businesses Can Fight Back Against Negative Social Media [e246]

    January 11, 2016

    Nasir and Matt kick off 2016 by discussing how one Indianapolis bar responded to a negative post on its Facebook page. Transcript: NASIR: Welcome to our podcast where we cover business in the news and add our …

  • 10 Tips to Prevent Business Litigation

    September 24, 2015

    An ounce of prevention, as they say, is really just sound business practice. Litigation can be ruinously expensive and may force a business into liquidation. Even a “win” can devour the time and energy you need to …

  • Can You Get Fired For Being Racist? [e215]

    August 17, 2015

    Nasir and Matt discuss how racism led to employees getting fired and another instance where a judge overturned a decision to terminate a racist employee. Transcript: NASIR: Okay. Welcome to our podcast where we cover business in …

  • Should You Finance the Sale of Your Business?

    September 30, 2014

    Truthfully, most sellers don’t want to take back paper. An all-cash deal often looks like the easiest and cleanest way to get on to the next venture, much preferable to waiting for another 5 to …

  • How One Business Was Awarded Money From An Untrue Yelp Review [e226]

    September 30, 2015

    Nasir and Matt talk about a judge in New York awarding a business owner $1,000 as a result of a bad Yelp review left by a disgruntled customer.  They also discuss a recent lawsuit appeal …

  • What to do When a Customer Accuses an Employee of Theft

    July 02, 2015

    This is one of those managerial headaches that may make life on a desert island look attractive. You don’t want to lose the customer or expose your business to accusations of wrongdoing, but you also …

  • Is PTO Enough When Paid Sick Leave Is Required?

    January 19, 2016

    Look around your office. Is anyone out sick today? (Alternatively, is someone who is in the office clearly too sick to be there?) According to Bloomberg BNA, sick leave will be a big issue for …

  • Erotic Data on Employee Smartphones: What Can an Employer Do?

    March 03, 2016

    The topic of teachers getting into trouble over sex-related matters has become almost a sub-genre of American journalism for several decades now. In the late 1990's, Washington schoolteacher Mary Kay Letourneau became a tabloid feature …

  • When the Boss Sells the Company

    December 11, 2014

    I once worked for a company that had been rumored, maybe, at some distant time in the future, possibly, but not certainly, perhaps in connection with a potential sale or not, to be tentatively considering …

  • Can Employers Still Use Credit History in Hiring?

    June 18, 2015

    Job seekers hate credit checks. They see it as invasive data collection with only remote relevance to job performance. It has also been argued that credit checks unfairly burden those who have or have had …

  • FMLA;
  • Safety and health;
  • Employee classification;
  • Overtime, wage, and hour;
  • Privacy; and
  • Discrimination.

So, with the help of legal counsel, make sure any telecommuting policy you have in place is fully compliant with all of the issues I am going to talk about below, and also with any other relevant issue, as well.

Six Legal Concerns You Need to Take Before Allowing Telecommuting

While this list is not comprehensive, here are six basic concerns you need to have when you allow any type of telecommuting – including simple, after hours logging on.

Telecommuting and FMLA

The idea for this article actually popped up because of a recent legal case dealing specifically with the Family and Medical Leave Act (FMLA).

Donahoe-Bohne v. Brinkmann Instruments dealt with how to determine a worker’s site location when handling an FMLA claim.

For your memory, let me give you an incredibly quick recall of how FMLA works:

If you have a worksite with at least 50 employees, then you fall under the FMLA requirements. For this part of this post, that is all you need to know.

However, if a worker is fully remote, do they work at a location where at least 50 employees are employed?

According to the decision by the Eastern District of Louisiana, the answer is maybe. That is because the court said that the worker is considered part of the location where they report. This means that if, when counting all of the workers that report to that location, at least 50 employees work there, the virtual employee is entitled to FMLA benefits.

Safety and Health Concerns for Remote Workers

OSHA and Workers’ Comp are both things you need to consider when allowing workers to do their jobs remotely.

If a worker is performing their job – even if they are doing so from a home office – then you will likely be liable for any injuries that occur the same as if they were in your office.

If a worker trips and falls on the way to the printer in their own house, while they were working, then you might have to pay workers’ comp. OSHA even has its own instructions and guidelines for home-based worksites.

So make sure to know and understand your obligations when it comes to an employee’s safety and health, even when they are working remotely.

Classifying Remote Workers

Just last week, I talked about the importance of getting employee classification done correctly. However, one thing I didn’t mention is that when you allow employees to work from home you might have an even more uphill battle when it comes to classifying employees.

This is because it is easy to assume you don’t have control of a worker who is not on-site. This means you are more likely to classify home-based employees as independent contractors or freelancers. However, that is only one consideration that courts will take when determining whether an employee works for themselves, a third party, or you.

Before you decide someone doing remote work for you does not mean a worker is under your employ, look at the whole picture.

  • How much control do you have of their actual work?
  • Are they required to report to you during specific hours?
  • How are they paid?
  • Are they working for other people doing similar work?

If you have questions about an employee’s status, make sure you talk to your legal counsel.

Telecommuting and Overtime, Wage, and Hours Issues

Perhaps one of the most complicated topics you will face when dealing with telecommuting workers is wage and hour concerns.

Think about the telecommuting benefit I mentioned before about natural disasters. Let’s say that your workers get a lot of work done during a hurricane when your office is closed.

That’s great! However, do you have to pay them for that time?

Similarly, a worker has 40 hours in, and then goes home and answers emails and types up a report.

That’s great! But do you now owe them overtime?

The answer to both these questions is probably.

Of course, when an employee is exempt, this becomes a lot easier. They just get their regular salary. However, it becomes more complicated when a worker is paid hourly or is nonexempt.

Workers’ must be paid for hours they worked, even if those hours are conducted from a remote workplace. That means when they are working from home, you need to pay them.

To make sure you are accurately paying workers, especially when those workers work from home, then make sure you have a system in place to track and monitor an employee’s work time. Plus, make sure that you have ways to limit an employee’s work time if you do not want to have to pay them overtime.

Specific Concerns with BYOD, Privacy, and Telecommuting Employees

How do you make sure your intellectual property, trade secrets, and sensitive information stays safe and private when an employee is working from a home-based office?

You could send out an IT pro to their house or require them to use a certain level of security in their house.

However, whatever you do, make sure you are aware of any privacy or BYOD laws that might apply to how you handle workers in general. While you have the right to protect your confidential information, remember that employee have some rights to privacy too.

Discrimination in Telecommuting Options

The final issue I am going to discuss is discrimination concerns.

If you offer a telecommuting option for workers, make sure that option is fairly applied to any applicable employee. There are certain jobs that cannot feasibly be done from home. So if you are offering workers that can telecommute the option to do so, but you are not offering it to positions that could not do it, then that is probably fine.

However, the problem pops up when you are letting some workers telecommute but others, who could also do so, are being denied permission.

If you let workers of one protected class telecommute, but not those of another, then you could find yourself in trouble later on.

Final Thoughts

Allowing workers to telecommute offers a lot of benefits to employers. So, if you work in an industry where telecommuting is a viable option for your employees, then you may want to seriously consider allowing them to do so – at least on an as-needed basis.

However, before you do that, make sure you have taken a look at the laws that apply when you have remote workers. Take some time to double check your policies regarding the topics I have discussed above.

It is, as always, a good idea to talk to an employment law attorney about helping you ensure your policies and practices are legally compliant – in this area, as well as all areas of your business.

Read More