Legal Pitfalls that Derail Your Telecommuting Program

In yesterday’s Advisor attorneys Deanna Brinkerhoff and Cathleen Yonahara offered 10 tips for successful telecommunicating; today, their take on the legal issues that challenge companies with telecommuters.

Brinkerhoff (Holland & Hart LLP in Las Vegas) and Yonahara (Freeland, Cooper & Foreman LLP in San Francisco) offered their suggestions at the Advanced Employment Issues Symposium, held recently in Las Vegas. Both are members of the Employers Counsel Network, the attorneys from all 50 states who write BLR’s employment law newsletters.

ADA—Reasonable Accommodation

• Telecommuting may be a reasonable accommodation for disabled workers under the Americans with Disabilities Act (ADA).
• Engage in interactive accommodation process with employee to consider possible accommodations that will allow workers to perform essential job functions.
• Possible accommodations are subject to undue hardship analysis.
• Check the Equal Employment Opportunity Commission (EEOC) Guidance: Work At Home/Telework as a Reasonable Accommodation.

FLSA—Wage and Hour

• The term “Hours Worked” includes work from home.
• You need a plan for tracking time for nonexempt workers. Make it clear that telecommuters are subject to the same recordkeeping rules as on-site employees. (Some companies only allow exempt employee to telecommute, notes Yonahara.)
• Plan to manage “off-the-clock” issues (telecommuters performing work outside of normal hours and unrecorded).
• Enforce and track meal and break periods (if required by state law or company policy).
• Track daily overtime if required by state law.

Equal Employment Opportunity—Nondiscrimination

• Offer telecommuting option on a nondiscriminatory basis. Don’t leave decisions up to managers, says Brinkerhoff. Have a standard policy of eligibility criteria.
• Ensure that certain groups of employees are not impacted disparately. (For example, says Brinkerhoff, your policy may require telecommuters to have a dedicated room. The EEOC may say that only affluent white males have an extra room.)

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FMLA Considerations

• When counting employees to determine Family and Medical Leave Act (FMLA) coverage (i.e., whether 50 employees are employed within 75 miles), telecommuters are counted as part of the worksite to which they report and from which assignments are made.
• If an employee is eligible for FMLA leave with a qualifying reason, he or she must be relieved of all work—telecommuting does not count as leave.

Workers’ Compensation

• If a telecommuter is injured while working at home, is he or she covered by WC? (It’s often difficult to separate home office workplace injuries from those caused by residential circumstances, says Brinkerhoff. For example, take an employee who trips going downstairs at 11 p.m., and says he was going to type a business e-mail.)
• Require telecommuters to immediately report any work-related injury.
• Follow all your normal WC procedures and your carrier’s protocols.

OSHA—Safe Workplace

• OSHA does not normally conduct inspections of home offices nor require employers to inspect home offices (but if there is an imminent threat, they may inspect, says Brinkerhoff).
• Employers are not liable for employees’ home office as an OSHA safety violation.
• Employers should include work-related injuries suffered by telecommuters in their OSHA log and recordkeeping.

Confidentiality and Privacy Concerns

• Use secured computer systems that can be accessed remotely.
• Ensure that no confidential information or e-mails are transmitted through unsecured Internet connections.
• Have a clear policy regarding ownership of property and safeguarding of information.
• Restrict use of company-provided devices (e.g., laptops, PDAs, and smartphones) to employee only.
• Require that devices must be locked when not in use by employee to prevent use by family members.

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