by Tammy Binford
When Yahoo! Inc. CEO Marissa Mayer decided her company would be better off if home-based workers relocated to the office, she gave a lot of people a lot to talk about. And telecommuters, HR professionals, executives, and bloggers sounded off in a big way.
The furor started with a memo in February that was labeled confidential but was soon leaked. The memo from Jackie Reses, Yahoo’s executive vice president of people and development, says that beginning in June, “we’re asking all employees with work-from-home arrangements to work in Yahoo! offices.” 
In an age when technology is touted as enabling employees to work from anywhere, the Yahoo! decision caught many by surprise. Why would a tech company forgo work-from-home capabilities in favor of bringing people into the office? The answer detailed in the memo: collaboration, quality, and speed.
Conflicting views
The memo begins by pointing out that Yahoo! has recently “introduced a number of great benefits and tools to make us more productive, efficient and fun” and then gets to the heart of the matter: Employees need to work in the office.
“To become the absolute best place to work, communication and collaboration will be important, so we need to be working side-by-side,” the memo states. “That is why it is critical that we are all present in our offices. Some of the best decisions and insights come from hallway and cafeteria discussions, meeting new people, and impromptu team meetings. Speed and quality are often sacrificed when we work from home. We need to be one Yahoo!, and that starts with physically being together.”
But work-from-home enthusiasts beg to differ. Jessica Lipnack, who coauthored the book Virtual Teams: People Working Across Boundaries with Technology
Lipnack asks the question “Can absence make a team grow stronger?” and cites a study she was involved in that looked at high-performing teams in a variety of industries “and the resounding conclusion from the data was ‘yes, indeed.’”
Lipnack’s blog post, written as a letter to Mayer, says, “Do you actually believe that people today work in intact teams? When you force everyone to co-locate, you’re most likely not bringing in the people who actually work together. Do you have contractors? Partners in other companies? Suppliers? Vendors? Developers in India/China/Philippines/Singapore?”
Legal questions
The question of whether home-based workers are as valuable to a company and in tune with coworkers as in-office workers doesn’t come with a clear answer, and in spite of Yahoo’s decision, telecommuting is likely to remain a popular option. So employers need to think about more than corporate culture, innovation, and productivity. Nuts-and-bolts legal issues also have to be considered. Here are just a few issues to ponder.
Discrimination: Employers allowing telecommuters need to guard against claims of unfair treatment that can escalate into unlawful discrimination claims. “Employers certainly should be wary of discriminating against employees in a protected classification, even inadvertently,” Marylou Fabbo, a partner at law firm Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, says.
“Employees in the same job classification or with the same job duties should be treated in the same manner regarding whether they can work at home or not. If the employer does not treat the similarly situated employees the same, the employer must have a legitimate, nondiscriminatory reason for the differing treatment,” she says.
If some workers are allowed to telecommute while others aren’t, the worker denied the opportunity to work from home may claim that the decision was based on age, gender, race, religion, or membership in some other protected class. “As evidence, the employee would likely point to the employee outside of the same protected classification who was allowed to work from home,” Fabbo says.
Wage and hour issues: Fabbo says employers who allow nonexempt employees to work at home, either all the time or just after regular office hours, must take steps to keep from violating the Fair Labor Standards Act or a state wage law.
“A nonexempt employee must be paid for all hours worked, and that includes not only regular telecommuting time but also, for example, the one-half hour an employee who works at the employer’s place of business spends checking and responding to e-mails at home after dinner,” Fabbo says. She says policies prohibiting extra hours without permission are “a start in the right direction as is having an employee review his or her time records weekly and ‘sign off’ that they are accurate.”
Workers’ compensation: Home-based employees’ work-related accidents also may be covered by workers’ compensation. Fabbo says employers should consider requiring mandatory training for telecommuting workers, ergonomic evaluations of home offices, and occasional reassessments of their working environments.
Contracts: Employers who have allowed work from home and then decide to curtail the practice need to determine if they have contractual problems. “An employer that has entered into an employment contract with an employee that affords the employee the right to work from home could face legal liability for breach of contract if it does not adhere to the contract’s provision on telecommuting,” Fabbo says. “As to at-will employees, however, an employer generally is not going to be in legal hot water simply for changing its position on telecommuting and discontinuing its practice of allowing it.”
ADA concerns: Even employers who don’t allow telecommuting may have to work from home if it’s determined to be a reasonable accommodation under the Americans with Disabilities Act (ADA). “Employers must keep in mind that there is no such thing as a ‘strict’ policy when it comes to the ADA,” Fabbo says. “Employers must decide on a case-by-case basis whether it can afford a disabled employee the reasonable accommodation of working at home. Employers often claim that letting one employee telecommute might be perceived by other employees who must work in the office as giving the employee preferential treatment; however, that concern is not a basis upon which to deny a reasonable accommodation.”
Employers also may claim that allowing telecommuting as an accommodation may pose an undue hardship on their business, “but, over the past year or so, numerous courts have decided in favor of employees, holding that the employer had not established the high-burden of demonstrating that telecommuting presented an undue hardship,” Fabbo says.
Out-of-staters: Fabbo says another legal issue employers must consider when allowing telecommuting centers on where employees live. “For example, if the employee lives and works in a state other than where the employer is located, depending on the issue, one or more states’ tax, leave, and/or other laws may apply.”
Confidential information: Employers allowing work from home also need to consider the security of trade secrets and other confidential information. “Will the employee’s spouse, who works for the employer’s competitor, find the company’s strategic marketing plan when logging in to a home desktop to plan a vacation?” Fabbo asks.