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Telecommuting: Here Today But Gone Tomorrow?

On January 4, 2000, the Washington Post reported that the U.S. Occupational Safety and Health Administration (OSHA) had quietly posted an advisory ruling on its website in November 1999 which stated that an employer is responsible for federal and safety health violations that occur at an employee's home if the employer allows the employee to work at home. Not surprisingly, OSHA was immediately overwhelmed by furious attacks from businesses and Republican congressional leaders who characterized the ruling as an "outrageous extension of the Washington bureaucracy into the lives of working men and women across America." By the following day, U.S. Labor Secretary Alexis Herman was forced to issue a press release stating that the "rules are not so clear" and that she intends to open "a national dialogue to determine what the rules and policies should be" on telecommuting and work spaces at home.

In this new millenium, the traditional paradigms for work are rapidly changing. Experts estimate that more than 19.6 million adults now regularly telecommute from their homes. As we continue to move toward an information-based, high-technology economy, the numbers of telecommuters are expected to rise. The federal government's "interest" in telecommuting can either speed or stop the trend.

What is Telecommuting? There is no legal definition for "telecommuting." In general, the term refers to employees who perform services for their employers while they are at home. Technological improvements have made it easy for employees to do their work at home and transmit their work products and/or participate in meetings by telephone, facsimile and computer systems. For many workers, there is simply no need to go into the office!

Why Do Employees Telecommute and Why Do Employers Let Them? There is no single reason why employees choose to telecommute. For some employees, particularly disabled persons and others who may have difficulty going to an office, telecommuting provides a way to work without the necessity of traveling. For other employees, telecommuting allows them to accomplish more work (longer hours) without having to stay in the office 24 hours a day. For still others, telecommuting is a convenient way to balance home responsibilities (i.e. parent and/or child care) with work responsibilities. In short, there are dozens of reasons employees elect to telecommute for part or all of their working time.

Although there are also many reasons employers allow their employees to telecommute, there are three major reasons the practice has flourished. First, telecommuting (as it is currently practiced) can be cheaper than having an employee work in the office since employees who work at home generally require less office space and support. Second, telecommuting can improve employee morale by allowing employees with personal demands (which restricts or prevents them from coming to the office regularly) to still work. Third, telecommuting allows the "workaholics" of the world to work more! Bottom line, telecommuters can be as, if not more, profitable than an employee who works exclusively in the office.

Are There Labor and Employment Law Issues with Telecommuters? Most labor and employment laws assume employees either work at their employer's place of business or work at job sites where the employer's customers are located. In either situation, the presumption is that the employee leaves home to work. Needless to say, this presumption creates problems if an employee works at home. Consider the following scenario:

A man resides at a condominium complex and is asked to perform pool servicing and ground supervision for the complex in exchange for a monthly fee. He accepts and is later asked to provide additional services -- general maintenance and repair -- in exchange for an hourly fee. He accepts. One day, while attempting to discipline a neighbor's children, the man is attacked by a tenant and injured. He applies for workers' compensation benefits.

Disciplining tenant's children is not part of the duties this man was asked to perform. He was retained to service the pool, supervise the grounds, and perform general maintenance and repair. Nevertheless, he was awarded workers' compensation benefits. See Camara v. Association of Apartment Owners of Marina Palms, AB 86-559 (Hawaii Lab. Appeals Board 1987).

The foregoing case illustrates one of the difficulties with telecommuters -- separating work time from personal time for purposes of workers' compensation liability. However, as more employers look into the possibility of allowing employees to telecommute, more difficulties are sure to arise. For example:

  • How do you ensure accurate records are kept of time worked, as required by federal, state and local wage and hour laws?
  • How do you control the amount of overtime worked?
  • What happens if the employee slips in the kitchen while fixing lunch and working on the computer at the same time -- does that constitute an injury arising out of or in the course of work so that you must provide workers' compensation benefits?
  • If a telecommuter takes Family and Medical Leave because of a serious health condition, how can you tell when the employee is ready to return to work if he/she is recuperating at home?
  • If you allow telecommuting for one employee, can you deny a disabled employee's request to telecommute as his/her "reasonable accommodation"?
  • Does the employee's home become a work site which the Company must ensure is safe, healthful, and free of discrimination and harassment?
  • Do you have a system for ensuring that all of your telecommuters receive all the notices employers give to employees (such as FMLA notices, benefit enrollment forms, employee handbooks, etc.)?

Unfortunately, federal, state and local laws do not specifically address these issues. Business changes more rapidly than the law. As a result we are in a situation where work arrangements are developing faster than the labor and employment laws can account for them. While the current Federal Administration has acknowledged the existence of the problem and the need to address it, nothing has been done to date --- other than OSHA's ill-planned announcement. Accordingly, employers will have to make educated guesses in establishing these alternative work arrangements.

What Can You Do? If you want to allow an employee to telecommute, then you should PLAN AHEAD. Think about the following issues and how to address them:

Wage and Hour Issues. Non-exempt employees must complete time sheets and must be paid overtime for work in excess of 40 hours per week. How do you monitor this if they are working at home? One option would be to enter into a written agreement with the employee to designate the time that can be spent working. The agreement can also specify a procedure for calling in to a supervisor for advance approval of any overtime. Another option would be to limit telecommuting to exempt employees only.

Workers' Compensation Issues. How do you verify whether the employee's injury really arises out of or occurred in the course of working at home? The problem is not unique to telecommuters. It occurs whenever an employee works away from the employer's primary job site. Consequently, the options are the same. You can try to limit the "scope" of the employee's work by (a) carefully defining (again in an agreement) the individual's duties and work hours, and (b) carefully investigating any claim that may be filed to verify when and how the injury occurred. Alternatively, you can limit telecommuting to employees you trust.

Leaves of Absence. It seems the simple solution would be to tell a telecommuting employee to refrain from working while they are on leave and to contact you, ahead of time, for permission to start working again. But life isn't simple and some people simply will not follow directions! Consequently, you can either put the entire procedure in writing (an agreement again) and require the employee to follow it (or the contract is terminated) or limit telecommuting to employees you trust. Bottom line, there is probably no "good" solution to this problem.

Reasonable Accommodation Issues. Yes, if you allow a non-disabled employee to telecommute from home, then you could be required to allow a similarly situated disabled employee to do the same. But this doesn't mean you should reject telecommuting. Remember, you're creating a new "job position" so you can specify the essential functions and qualifications for that job. Disabled and non-disabled employees alike must meet the qualifications and perform the functions in order to have the job. If they can do the job, why not let them work from home?

OSHA Issues. Clearly the U.S. Occupational Safety and Health Administration is inclined to extend OSHA regulations - including their planned ergonomic standards - to telecommuters. It's only a question of time. Therefore, you need to plan ahead. Some employers are providing telecommuters with the proper equipment (computers, work tables, etc.) and guidelines for setting up their home offices. Other employers establish policies and require employees to allow them to inspect their "home offices" to ensure compliance with OSHA standards. Again, there is no perfect solution.

Discrimination and Harassment. Telecommuters are in the same position as other employees who work away from your primary work place. Wherever they go, the "company" goes too. Consequently, if you become aware that a telecommuter is being discriminated against or harassed (or is doing the discrimination or harassment), you have a legal duty to: (1) immediately and confidentially investigate the situation; (2) take effective remedial action, when appropriate; and (3) prevent retaliation.

Miscellaneous Personnel Practices. This is simply a matter of getting organized. Put the telecommuters on a special checklist and make sure they get copies of applicable personnel policies, handbooks, benefit forms, and any other personnel announcements. Don't forget to include them in employee functions, including training and company-sponsored events. Just because they work at home doesn't mean they should be exempt from coming to the office occasionally.

Bottom Line for Employers. Telecommuting is still a very new way of working but more and more employers and employees are opting for that system. That is why the federal government is interested in looking into the situation. Consequently, employers with telecommuters should keep a close eye out on legal developments. If OSHA's recent "announcement" is any indication, federal and/or state regulation of telecommuting is a distinct possibility in the near future.

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