Employer Responsibility After The Mayor Of Austin Urges Telecommuting [e260]

March 16, 2016

Nasir and Matt talk about the mayor of Austin recommending employees work from home on Friday due to SXSW and the President being in town and how that affects employers.

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: That’s correct.

MATT: All right, that’s it.

NASIR: That’s actually the first time you got that right.

MATT: Yeah. Well, you know the phrase, “260th time’s a charm.”

NASIR: Yeah. Wow. 260, huh?

MATT: Yeah.

NASIR: We’re getting up there.

MATT: It’s a good amount – close to 300.

NASIR: Closer to 300 than it was closer to 200, that’s true.

MATT: Yeah, definitely.

NASIR: Have you ever been to South by Southwest?

MATT: Oh, is that what that means? I thought it was Swiss… I don’t know. I was going to try and pronounce it as a word. No, I haven’t. Never even been to Austin.

NASIR: Oh. Most people compare Austin to San Diego – or I should say they see some comparables to it. I would agree, actually. The atmosphere, it’s a big small town just like San Diego. I have been in Austin during SXSW. It was crazy.

MATT: Yeah, I remember that.

NASIR: You remember that? But I was there because I was meeting with the Texas Department of Insurance – with eight or nine people from there – in this old office building. You know those old government buildings where smells of old books or something? And I was in the boardroom with, like, six or seven different people and, literally, outside – and this is Downtown Austin – there was like band music going off and drums and they were like, “Oh, yeah, that’s been going on all day and all week,” or whatever and I’m just thinking, “I drove all the way to Austin and SXSW is going on and I’m just sitting in this boring Texas Department of Insurance meeting.” But, anyway, that’s my experience.

MATT: You didn’t even really partake in any of the…

NASIR: No, I walked around a little bit. I needed to head home but, yeah, I just walked around. There were some activities going on. I don’t even think I ate lunch there. That was horrible.

MATT: Time well spent.

NASIR: Yeah.

MATT: Well, is it this Friday?

NASIR: I think it starts this Friday, yeah.

MATT: Okay.

NASIR: At least maybe the interactive part. Don’t ask me. I always forget there’s like all these Austinians? What are they called – Austinites?

MATT: Austines?

NASIR: Austines?

MATT: Austinites is probably right.

NASIR: Okay. They’ll be upset that I don’t know but, if I recall correctly, it’s divided into two or three segments – one of them being South by Southwest Interactive which is all the startup scene and things like that then you’ve got the music and something else, too. I don’t know.

MATT: Austonians, maybe.

NASIR: Austonians.

MATT: I don’t know.

NASIR: Yeah.

MATT: It’s a tough call.
Well, anyway, the reason we’re talking about that is – I didn’t know about this. You told me about it so I’m not going to pretend like I knew about this beforehand but the Austin mayor is encouraging people to work from home or take a half day on this Friday which I’m assuming will be the previous Friday from when people from when people are actually listening to this. That’s why I asked about the dates but that’s fine.

NASIR: By the way, Austinites, according to Wikipedia. Demonym I guess is what the term is – a word to identify residents or natives of a particular place.

MATT: This’ll be a fun episode to transcribe.

NASIR: I know. Sorry. Okay.

MATT: Yeah. So, the mayor is saying to anticipate heavy traffic. Part of the reason is because SXSW. Another reason is because the President is going to be in town and I assume another reason is probably there’s just traffic there in general. It is a big city with a lot of people in it.

NASIR: Yeah.

MATT: I’m not going to act like I know what the traffic is like because San Diego traffic really isn’t that bad and there’s a ton of people in San Diego, too.

NASIR: I mean, rush hour, obviously, San Diego. But Austin’s the same. I mean, it just depends upon where you’re going, where you’re coming. It’s not like in LA or a metropolitan where it’s just like it’s always traffic but it’s not that great.

MATT: So, the mayor is encouraging people to take a half day or take a full day and work from home which I guess is probably something that employers will want to have a say in because there’s ramifications to that. Just because you have an employer allow an employee to work from home, work remotely or telecommute – whatever way you want to put it – doesn’t mean that the laws don’t apply. So, despite the fact that the mayor is saying, “Hey! Everybody just work from home. I’m going to tell you guys what to do,” employers obviously are still going to have the last word and they’re going to need to make sure that they have the appropriate safeguards or policies in place before they allow their employees to do this.

NASIR: And I think some businesses are actually going to take up the mayor’s proposal because I think Obama – or I don’t know if it was Obama or another president – was there not too long ago and there were experiences where literally people were stuck in their buildings for six hours and couldn’t go home. I think I was in West LA I remember when the President was in town for some fundraiser and the traffic just all of a sudden, it’s already bad already but it just went into lockdown. I mean, with SXSW and it being a Friday, it is going to be like a big deal. And so, yeah, if businesses are actually going to enter into it, I doubt – especially the ones that maybe haven’t done it before and they may just be doing it for the first time this time – I suppose there could be some legal issues that they don’t realize and something that could happen that they may not have anticipated.

MATT: Yeah. So, what are some of the things I guess for them to keep in mind? I mentioned this previously but the idea is the general rules are going to stay the same – that they would be if the employees were in the office as opposed to if they were at home. So, we’re talking meal and rest breaks. If it possible for the employees to get overtime, that would still apply.

NASIR: Which is weird because, all of a sudden, they’re working from home and they don’t even have to commute – besides maybe going to a desk – and then I don’t know if it’s an hourly employee then their time-tracking, if that’s still there and taking a break. I mean, some employers may be worried about the monitoring or supervising part of things and I suppose that’s a concern but, I mean, we’re not here to advise on that. But there’s some weird law going on about, for example, OSHA said that basically, if someone’s working from home, you need to have a safe working environment which is goofy because how can an employer ensure a safe working environment at someone’s home and they don’t do inspections anymore for those that have OSHA inspections of home offices. I think they released a ruling saying that. I think that’s changed but, still, you still have that requirement to have a safe working environment at home.

MATT: Yeah. I mean, it is peculiar. Jumping back on the episode we had earlier in the week, you know, where is the employer supposed to draw the line here?

NASIR: It’s true.

MATT: They’re not going to go to the place where the employee lives and check everything out to make sure they have a safe work environment. Let’s look at a hypothetical here. I run a business in Austin. I listen to the mayor and let my employees go home or work from home on the Friday. There’s a lot of conference tournaments going on in college basketball so let’s say this employee is watching this and their team hits a last-second shot and they jump up and down in celebration and end up getting hurt, you know? They file a claim – a workers’ comp claim or something like that – and “Well, my home wasn’t safe, it wasn’t a safe working environment and you required me to work from home.” I guess that’s another thing we should consider, too – whether these employers are requiring the employees to work from home or whether it’s just merely an option.

NASIR: You also implicate workers’ compensation issues, right? Because, generally, if you’re on your way to work or coming from work or commuting and you get into an accident or whatever, workers’ compensation doesn’t apply. But, if you’re telecommuting, there’s actually some interesting law. It really comes down to if you get injured within the scope of your employment. Going back to the safe working conditions, there’s a lot of law firms that will take these minor issues and it’s one of those things, if you ask them a question, “What should we do about this?” they’re going to give you an answer and they’ll give you answers like, “Okay. Make sure that there are smoke detectors. Make sure that there’s drinkable water there. Is the office set up in an ergonomic design?” and things like that. It’s okay, okay, from a practical perspective, it gets a little silly at one point. Really, is someone going to file a claim on that line? The answer is “possibly” because an upset employee may do a lot of things but the likelihood of that and where it’s going to end up, I mean, that’s a different story, of course, and it ends up being a risk assessment on your part.

MATT: Well, yeah, if it was the flip side of my hypothetical and their team lost on a last-second shot and they punched through a wall or something and broke their hand and said, “Oh, it’s not a safe working environment. My computer broke my hand or something.” I don’t know what they would say but it is something that I would guess they have to consider and you touched on it briefly about monitoring. I mean, that’s really at the top of the list of concerns for an employer. You have an employee and every day they have to go to work, sit in the same spot, do more or less the same thing, and now, one day, they get to this one magical Friday they get to work from home, they’re going to kind of view that as basically almost a free day. I mean, maybe they’re going to have to do work here or there, but you don’t know what they’re going to be doing at their home. I mean, they could be taking it seriously or they could be slacking off. I think no one is probably going to work 100 percent of how they work if they were in the office or act the same. So, you’ve just got to hope that they come close to that, I suppose.

NASIR: Yeah. I think that’s true for the most part. I mean, it may depend on what the position is, too – if it’s an upper level management, it may not matter because they’re incentivized differently, possibly – just depending upon how they’re paying. You just have to be kind of careful with unintended issues and there are some. This may not relate exactly to Austin because it’s a one-day thing but, when we’re talking about a telecommuting workforce, whether you allow some employees to telecommute or not, others that could be deemed discrimination. Also, telecommuting could be a possible reasonable accommodation – you know, when someone has some kind of disability and/or some kind of even if it’s temporary or permanent and they’re requesting to work from home, some courts are actually split whether some courts consider that a reasonable accommodation for them to work from home or not and even providing maybe certain equipment for them at home. Even the equipment itself, I mean, generally, an employer should provide the use of any equipment – computers, cellphones, and so forth – and, if they’re working from home, which computer are they using? Are they using their personal desktop? That might be an issue.

MATT: Yeah. I mean, it has to make sense, right? If your job is dependent on going in the office and using a desktop computer there and the server, you can only access it there, obviously, what are you going to be able to do from home? But, like you just said, if you’re in a situation where you can go home or if you can work from home, access the server remotely, but are you going to use your own laptop or own computer and maybe there’s some sort of security issue with that or maybe you don’t want to pay for your internet so you’re just kind of tapping into another one around you, especially if you live in a high-rise or something like that.

NASIR: That’s what I do!

MATT: Yeah, I know you do, that’s why I brought it up.

NASIR: I haven’t paid for internet since 1987 – before the internet was invented.

MATT: You’ve also had your identity stolen, I think 32 times this year.

NASIR: Yeah.
So, let’s see, company equipment. You covered trade secret stuff, work schedule – I’m trying to think of anything else – workers’ compensation, insurance. I mean, there may be some insurance aspects – you know, whether the employee should also be responsible for damage to the company’s equipment, for example. But those are small things again.

MATT: The situation we’re looking at here is, if an employer is going to do this, it looks like it’s a one-day thing.

NASIR: And it already happened by the time this podcast comes out.

MATT: Yeah. If you’re listening to this and nothing happened, then what do you have to worry about?

NASIR: Yeah, you’re good.

MATT: It’s in the past. I guarantee there’ll never be a situation where President Obama will be there at the same time as SXSW is happening in Austin. You can bank on that. Lock it in.

NASIR: Did you say President Obama or The President?

MATT: I said President Obama.

NASIR: Ah, okay. I mean, it could happen – president a couple of years from now coming to SXSW. Let’s just save this episode for that.

MATT: Yeah.

NASIR: In fact, let’s not publish this one. We’ll just wait for that to happen.

MATT: Yeah. Well, I mean, we kind of led with this. I didn’t even see what Obama was going to be there for. Is it for SXSW related something?

NASIR: It’s probably for a Texas Department of Insurance meeting.

MATT: With you?

NASIR: Yeah, with me. He’d set to speak at 2:30 at Long Center. I do like the quote from Adler, the mayor. He’s like, “It’s an honor to have the President come visit our city but it is a pain at some levels as well – one we will willingly endure.” I think that’s very true.

MATT: It does say he’s going to be a Keynote speaker in something with SXSW.

NASIR: I would just let the employees off. Well, if you need to work.

MATT: I was going to say there’s a chance they might be participating in all the SXSW stuff but I think, you know, I’m viewing this from my perspective as how Comic Con is when it rolls through San Diego. It seems like the people that live in San Diego – unless you were really into it – people kind of try to avoid everything at all costs.

NASIR: You’re exactly right. Yeah, they avoid it and it’s not like the city shuts down but there is an atmosphere in the air where it’s like everything is kind of slowing down a little bit.

MATT: Yeah. So, maybe that’ll be the case here.

NASIR: The difference is that SXSW really takes over – not that the Comic Con doesn’t but I don’t think SXSW is so centralized – ah, what do I know? I don’t even know. I’ve been there once and I wasn’t even there.

MATT: Yeah.

NASIR: I’m like the worst person to talk to about that but anyway.
All right. Well, thanks for joining us.

MATT: Keep it sound and keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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