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Nasir and Matt discuss the rise of telecommuting in the workforce and relay some pros and cons for both employees and employers.

Full Podcast Transcript

NASIR: All right. Welcome to Legally Sound Smart Business. My name is Nasir Pasha, where we cover business in the news and add our legal twist. Welcome to our midnight episode.

MATT: And I’m Matt Staub. That was an old school introduction by you.

NASIR: Well, yeah, I mean, I feel like I’m going back in time with how late we’re recording this.

MATT: Yeah.

NASIR: I’m actually half-asleep right now.

MATT: Which half?

NASIR: Well, my legs are in my bed in pajamas right now and I’m just yawning like crazy.

MATT: That would be pretty sad if you were actually recording a podcast like that.

NASIR: Practically. I went home, had dinner, changed, and then came back to the office in shorts and a t-shirt. Well, that’s what I do for you guys, just to produce quality episodes.

MATT: Yeah.

NASIR: Today, we’re talking about telecommuting, telecommuting… what are we talking about? I’m so off, I’m sorry.

MATT: You said it twice – telecommuting.

NASIR: Yeah, telecommuting. Yeah, exactly. There is a trend. Let’s face it, this has been going on for a while of moving your workforce to a telecommuting workforce or select employees that may request it in doing so and the legal implications of that and so forth.

MATT: Yeah, you did mention it’s a trend. I saw some numbers somewhere which dated a couple years back – obviously the increase. Obviously, when technology gets better and people have different tastes with things, I mean, it’s just bound to happen. I’m sure it’s like all things – employers, it’s just something they need to get used to and, once they get used to it, then yeah. If it makes sense for the employees they’re asking to telecommute, then great.

NASIR: Yeah.

MATT: Or it could be great. I mean, from the employer perspective, they might think, “Oh, this is great. I free up more space in the office. It’s one less thing to worry about.” But it actually could be quite the opposite and it could actually end up being more work for the employer having an employee work from home.

NASIR: Oh, yeah, no doubt. Obviously, the reason there is a trend is because of technology. I mean, that’s the driving force behind it and, sometimes, like you said, it can be an advantage but I think a lot of times, employers forget that these telecommuters are still employees so the rules of creating a safe work environment and issues with meal periods, breaks, overtime still apply. But, you know, speaking of technology, and this kind of relates to what we’re talking about, you know, what is actually telecommuting? Because, usually, we think telecommuting is working from home but I went to Bank of America today and so I walk in, I’m trying to find where the actual tellers are and I can’t find them. There’s a kiosk in the center of the room and it’s this woman and she’s, like, welcoming and I’m, like, trying to figure out where to go and I’m like, “This isn’t a normal Bank of America, is it?” and she’s like, “No, it’s not,” and she kind of directs me to this big computer system that’s waist-high and I look down and it’s a screen with someone staring at me with this Bank of America background logo and apparently it’s a real person and she’s probably basically telecommuting from wherever she’s filming from and has a camera on me and is basically performing as a bank teller. It was a very surreal, weird experience. I wanted to bring my wife just to come and look at this amazing branch of Bank of America. I thought it was neat. I don’t know.

MATT: Knowing your wife, I’m sure she wouldn’t have a blast getting dragged to a bank to check out a person on video.

NASIR: I literally got on my phone. I didn’t do it and she probably is glad I didn’t. I got on my phone to text her about it but don’t text and drive.

MATT: You didn’t mention that the Bank of America was on space or somewhere in the future, I guess.

NASIR: I was sleeping. It was like an hour ago that I thought I was there.

MATT: Yeah.

NASIR: But the point is that, I mean, things like that, you know, whether you’re telecommuting because it could be, you know, for example, call centers now do that but a lot of times, what about the issue of a lot of people that telecommute, the employers try to classify them as independent contractors because, well, in theory, we’ve talked about in the past, you know, it’s all about control and, in theory, if they’re working from home, how much control really do you have over the individual? But that’s a pretty slippery slope of an argument because just because they work from home doesn’t mean also that they’re an independent contractor.

MATT: Oh, not at all. If anything, we’ve seen – I think you might agree with me – we’ve seen so much push towards classification of independent contractors of these different agencies that that’s not even going to be close to enough to classify them for just that isolated thing of them not working in the office isn’t going to be enough to have them be a contractor because, if the employer’s letting somebody work from home saying they’re a contractor, assumingly, and just telling them what to do, when to do it, how to do it, I mean, that’s control and so it doesn’t matter. I mean, if you think about it, they’re saying, “Work from home too,” so maybe they give them the option, maybe they don’t, but if they’re telling them to work from home, then that completely defeats the argument of no control. But, if it is in fact an independent contractor, it makes things easy. But, if it’s an employee, like I mentioned at the beginning, it could be more difficult. I mean, to me, the most difficult aspect of it would have to be just if it’s someone that qualifies for overtime, I mean, just being able to monitor them and make sure that they’re not working past the normal hours they’re supposed to work and get overtime. I mean, in addition to that, other things like meal and break periods, things like that, but I mean, just the sheer monitoring of them has to be probably the most difficult piece to me.

NASIR: Oh, and speaking of monitoring, what about confidential information? You know, for example, I don’t know. I mean, you have friends, family that come over to your home and have access to your computer or even papers on your desk and so forth, that’s an issue. There’s also an issue, I mean, these are kind of few and far between but since it’s technically your work environment, the law pretty much goes towards the fact that the employer may have some responsibility in making sure that, well, this is what’s been argued and there’s been kind of split discussions about this but there was this case and it’s cited quite often, I think it was in Oregon or some sort where this person went out to the garage and she somehow got injured or tripped over something or whatever and she argued, unsuccessfully at first, she argued that because she was required by her employer to work out of her home, hazards within her home automatically became a work environment hazard and so, therefore, the employer had an obligation to fix it. The point of the story, I mean, it’s a little far-fetched of an argument but, you know, the appellate court actually kind of remanded back to the workers’ compensation board claim in Oregon. I’m not sure where it come out to but the point is that, when you do move to telecommuting, you get into these weird legal issues that you wouldn’t necessarily have to deal with but making sure that you’re still treating them within the confines of an employee-employer relationship as you would if they were in your office is sometimes hard to do.

MATT: Yeah. I mean, you’re right. There definitely can be a workers’ comp claim if somebody slips and falls in their home. I mean, it’s definitely possible. It’s definitely something an employer has to consider. And you mentioned confidentiality and I’ll take it with, you know, stuff on the desk, things like that, I’ll take it a step further. I’m going to wager that…

NASIR: How much? $100.

MATT: I was going to say…

NASIR: $200.

MATT: I was going to say that I would think that the online security in place at an office is going to be better than a home online security but I could be wrong about that.

NASIR: Yeah. I mean, that’s a good question. I mean, it also depends upon the target. I mean, home being more or less of a target for that type of material or not, I don’t know.

MATT: Yeah.

NASIR: But, you’re right, I mean, the technology protection, I mean, a lot of people are on Wi-Fi networks at home that may be less secure. But, nowadays, it seems like almost all the Wi-Fis are secure. I think people have gotten wise to that kind of concept but, if you’re still using a low security measure, then it’s pretty easily hacked so it kind of depends.

MATT: Yeah. You know, another thing too that I just thought about is it’s a fine line because, let’s say you have an employee that requests to telecommute and you allow it, I mean, what’s going to happen? Other employees are going to want the same thing and then you’re getting into issues of…

NASIR: Discrimination.

MATT: Yeah. You know, “You’re treating this person differently than these people. This is discriminatory!” so you’re kind of stuck in a difficult place and there’s obviously benefits to it but it seems like it’s a lot of hassles that, first of all, you’re going to have to worry about anyways but, second of all, you don’t even get to physically see and, to me, that’s a difficult aspect of it.

NASIR: Yeah, absolutely. By the way, there are about 75 fully virtual workplaces in the US today. I don’t know what kind of companies they entail because I’m kind of just glancing through here but there’s different companies – a lot of them tech-based – that kind of have embraced this and, if you’re a workforce from – you know, I’m talking about workforce like, if you have 100 or more employees which is not uncommon for many of these telecommuters – in fact, I think they did a study, you know, the average age of telecommuters are a 49-year-old college graduate who earns about $58,000 a year so these are bona fide employees and bona fide jobs, these aren’t these work-from-home, get-rich-quick schemes with more than 100 employees. When you have that many people working from home, think about just frankly these cost savings from a real estate perspective of not having to either own or lease space for them to work in. They already cram workers in space in cubicles already so that cost alone must be amazing.

MATT: Yeah. I mean, obviously, commercial real estate is expensive. You know, leasing office space is expensive. You know, I guess, on the flip side, one thing to consider is most likely someone working from home is probably not going to give you, you know, if two people turn in eight hours of work – one from an office, one from the home – I’m guessing the one at the office is going to be more work, if I had to guess.

NASIR: Yeah. I mean, I know you’re the same way. You and I both kind of for many years worked outside and inside offices and I would say this – and you would probably agree with this – if you have a separate workspace at home then you can be just as efficient. But, if you have workspaces on the couch in front of the TV or whatever, it’s not going to be too efficient that way.

MATT: Yeah. I mean, the last two spots I’ve lived at have had individual rooms that are offices exclusively used for office space in case the IRS is listening – that’s the requirement for a home office deduction – and it is true! I mean, I’m not even fabricating that. it’s a true statement.

NASIR: It’s true and it’s true so that’s good.

MATT: Yeah, not fabricated and true.

NASIR: I carved out a 100-square-foot piece of property for that.

MATT: Some people don’t know. It doesn’t have to be a closed off room.

NASIR: Yeah.

MATT: There are situations where you can have a piece of something – you know, a piece of your residence be considered a home office.

NASIR: Oh, I definitely cut it off. It was actually a square piece of carpet that I just cut, you know.

MATT: To stand on?

NASIR: Yeah, just to stand on. That’s what I did. No one else has to do that but, yeah, that’s my preference.

MATT: Substantial write-off that’s going to get you.

NASIR: Okay. That’s our story on telecommuting. I think we’ll probably revisit this issue because, once in a while, you’ll see companies moving their workforce to telecommuting but I have a feeling we’re going to get more and more laws but I want to focus more on classification issues when this comes up again next because I think that’s going to be the big topic there because people are going to try to – they already are – or they’re going to continue to try to classify their telecommuting workforce as independent contractors and they’re going to lose on that issue.

MATT: For sure, and then one other thing I wanted to mention is, if you do have an employee handbook, this should be addressed in the employee handbook.

NASIR: Yeah, telecommuting policy and keep it mind, I mean, at the same time, when you have telecommuters, the whole concept is to not micromanage them, right? How much can you dictate exactly how they work? But there are certain things that you would want to put in there.

MATT: Yeah, exactly.

NASIR: All right. Well, keep it sound and keep it sound and smart.

MATT: Wow.

NASIR: Oh, sorry.

MATT: You can’t take my line.

NASIR: I’m sorry.

MATT: Keep it sound and keep it smart.

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A podcast covering business in the news with a legal twist by Pasha Law PC
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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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