Legal issues in Telecommuting: Gas Prices make Businesses Reconsider Policies
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As gas prices approach $4.00 per gallon, more employees desire the telework options that have typically been of greater interest to workers for “family reasons”. Companies that formerly dismissed telework programs now find that attracting and retaining employees may depend on increased flexibility around attendance at the office. While productivity and IT issues abound, there are also some important legal considerations, including the following:
- Wage & Hour: Nonexempt employee hours of work must be recorded by an employer regardless of where the work is performed. Overtime is due when hours exceed 40 in any workweek regardless of whether the employer approves the extra hours worked.
- Worker’s Compensation: Employees who work at home have worker’s compensation coverage for injuries that occur in the scope of their employment. Employment scope excludes activities that are not in furtherance of the employer’s business or that are purely for the personal convenience of the employee. Working at home blurs this distinction.
- Disability Accommodation: EEOC’s guidance on work at home and telecommuting as a reasonable accommodation under the ADA states that employers must modify existing and create new programs for disabled workers by evaluating the essential functions of the job.
A carefully drafted policy can address some of the legal concerns including the following:
- The class of jobs eligible for the telework based on an analysis of the position’s essential functions.
- Limits on employees in those classes of eligible jobs based criteria such as performance, disciplinary record, time with company and time in the job realizing that ADA accommodation may trump these requirements.
- Job performance and productivity standards including the consequences of not meeting these standards.
- Restriction defining the “workday” and the “work location”
- Prohibitions on performing personal activities while working during the workday.
- The system for tracking hours of work including clear delineation of work/nonwork time and settling limits on overtime.
- Compensation for travel to and from company office.
- Safety mandates for the home work environment.
- Protections for IT and other confidential/proprietary information.
- Systems for addressing problems that arise when the employee is fired or quits.
