With workplaces across the nation reopening for business, many employers are evaluating whether temporary telecommuting policies can work in the long term for some employees. There are many reasons why telecommuting may be a desired option at this time, such as enabling busy workplaces to enact social distancing rules by keeping a portion of the workforce home, helping working parents meet childcare obligations, and providing an accommodation to employees who still cannot return to the workplace because of health concerns.
For employers that offered telework as a temporary option in the earlier phases of the COVID-19 pandemic, now is the time to evaluate whether a formal remote working policy is a good fit going forward. While offering telecommuting options may have business advantages such as being a recruiting tool, lowering facility and travel expenses, and boosting morale, there are also legal risks to consider.
Wage and Hour Issues
You must keep minimum wage and overtime issues in mind, and if you offer telecommuting as an option to nonexempt workers, you must consider how to track their working time. As a general rule, you must pay employees for all hours worked under the Fair Labor Standards Act (FLSA)—even work that wasn’t requested.
Telecommuting employees who are assigned specific work schedules and advised not to work in excess of the scheduled hours are still entitled to payment for work performed if the employer “knows or has reason to believe that the work is being performed.” To mitigate this risk, you must require nonexempt employees to contemporaneously track and record their hours worked and submit them on a regular basis, such as daily or hourly.
This risk doesn’t apply to exempt employees because they are paid the same weekly salary regardless of hours worked. You will generally want to ensure, however, that exempt employees are staying productive while away from the office and may want to track hours worked for this purpose.
On the other hand, employees who work from home report increased productivity working away from the office—devoid of distractions such as inefficient meetings, office gossip, or loud office spaces.
You may decide that challenges with productivity and time tracking mean some positions are suitable for working from home and others are not.
You must consider the duty to provide a safe workplace under the Occupational Safety and Health Act’s (OSH Act) general duty clause, which requires employers to provide places of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
In the past, the Occupational Safety and Health Administration (OSHA) has taken the position that employers aren’t required to inspect employees’ homes to determine whether they are safe working environments. In the midst of a global pandemic and with social distancing recommendations in place, many businesses may believe allowing employees to work from home more easily accomplishes their safety goals than returning the entire workforce to the office, especially those whose work involves primarily computer or phone work.
On the other hand, be aware that telecommuting employees who suffer work-related injuries at home may be eligible for workers’ compensation benefits.
As always, you must be mindful you aren’t providing (or requiring) remote work in a way that discriminates against protected classes.
For example, an employer that denies a male data-entry employee’s request to work from home so he can meet his childcare obligations but allows a female data-entry employee’s request to work from home for the same reason has opened itself up to a gender discrimination claim.
Information and Property Security
You must ensure you take steps to protect any confidential, private, or proprietary company or customer information used or accessed by employees when working remotely. You may want to require telecommuting employees to sign confidentiality or nondisclosure agreements. Electronic access to confidential data should be allowed only through a secure connection, such as a VPN.
You must also decide if you will allow employees to work on their own electronic devices. If you do, consider a “bring your own device” policy that allows you to retrieve company data from the employee’s device if necessary and informs employees of their rights and responsibilities with regard to the use of their own devices.
On the other hand, if you provide equipment or property, you should require telecommuting employees to acknowledge receipt of the property, ensure they will keep it protected from theft or damage, and return it at the end of the working relationship.
An experienced employment attorney can assist with assessing the legal risks of a telecommunicating plan and in drafting a telecommuting policy tailored to your workplace.
Elizabeth Bowersox is an attorney and shareholder with the Oklahoma City office of McAfee & Taft. She may be reached at firstname.lastname@example.org.
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