HR Management & Compliance

Telecommuting GPS: Mapping Out the Detours of Working Remotely

Everybody loves telecommuting and has nothing but great things to say about it. According to many articles you read these days, it’s clearly every employee’s dream. But is telecommuting really the key to happiness for employees and employers? Maybe.

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An Arrangement with Many Different Names

HR pundits will tell you that Millennials “demand” telecommuting. That’s supported by a 2017 Global Workplace Analytics study that showed a 115 percent increase in working from home over the last decade, with approximately three percent of the U.S. workforce currently working from home. However, other sources, including the U.S. Department of Labor (DOL), note that there has been a significant decrease in telecommuting over the last two years, with large corporations such as Yahoo, Bank of America, Aetna, and IBM canceling their telecommuting programs.

So what gives? Is telecommuting a panacea that will solve all of your workplace problems, or is it a drag on productivity and teamwork? Like so many things in HR, the answer depends on what you’re really talking about.

Part of the disconnect is that when we talk about the various forms of telecommuting, we aren’t necessarily comparing apples to apples. It’s more like comparing apples to dragon fruit. Telecommuting comes in a many forms, and employers must carefully plan for the type of telecommuting arrangement they want to allow—and what they won’t allow. In fact, “telecommuting” might not even be the appropriate term for what happens at your company. You might use terms like “flexible scheduling” or “working remotely” to describe the arrangement you’ve set up with your employees. And “working from home” describes a specific type of telecommuting where employees work from a home office on a regular schedule, possibly reporting back to the “main office” periodically.

Almost every employer allows some type of ad hoc telecommuting, formally or informally. Employees work from coffee shops, answer e-mails on their cell phones as they travel, send texts to customers, and engage in countless other activities away from the main office during “nonworking” time. As a result, you should assess how much remote work your employees are doing and implement policies that address their use of technology and your expectations of them when they aren’t working in the office.

Common Issues and Concerns

Accountability. Employers typically start with questions about accountability, such as how to ensure the quality of a telecommuting employee’s work or properly track her hours. Another concern is losing the cross-pollination of ideas. In other words, if an employee isn’t in the office, he won’t be interacting or brainstorming with the team, and group work will suffer. Cross-training also becomes an issue.

One of the stumbling blocks is the inability to actually measure what a successful job looks like. That can be true whether an employee toils away at the office, works remotely, or establishes a telecommuting office in her home. You should ask questions like:

  • What does acceptable performance look like?
  • What are the metrics that apply to the position?
  • How are those metrics used, and how are they regularly audited or accounted for?

Accountability should be measured on both an individual and a team level for an employee who doesn’t work in the office. The loss may be felt more keenly for one type of job than another. As part of your accountability assessment, you should measure how much a team suffers from losing the physical presence of the telecommuting employee.

Wage and hour issues. Another common concern involves wage and hour issues. First, you must ensure that time during which the employee isn’t performing work is being properly recorded. In a home office situation, it’s very easy for an hourly employee who’s “on the clock” to wander away from his desk to make a sandwich, pet the dog, fold some laundry, or engage in myriad other chores to avoid work. Unlike at the workplace, there isn’t someone to give him the side eye and tell him to get back to his desk. That’s why it’s necessary to assess your jobs and have clear metrics for determining which ones can be successfully performed by a telecommuting employee. Decide whether you expect the employee to complete a certain amount of work each day, or set an error rate or some similar way to evaluate whether he is using his time on the clock appropriately.

Another concern arises for hourly employees who engage in ad hoc telecommuting. If your nonexempt IT person consistently gets calls from colleagues while she’s on vacation, traveling, or at home, she should be paid for that working time. It can be difficult to get employees to appropriately record for compensation purposes all of their e-mails, text messages, and other responses to issues that arise while they’re away from work. Minor things like a quick “I’ll be five minutes late” text don’t need to be counted as time worked. But you should plan to pay a nonexempt employee if you interrupt her vacation to have a 15-minute conversation about how to resolve a firewall issue. Employers need to have clear expectations that time worked will be fully accounted for and fully paid.

Travel to the office by telecommuting employees may also implicate wage and hour issues. If an employee who normally works from home or from her local coffee shop is required to report to the workplace for a meeting, would her travel time be considered an unpaid commute, or is it paid working time? The answer depends on how you draft your telecommuting policy. If your policy requires telecommuters to show up at the office periodically, such as one day a week or for certain quarterly meetings, you can count travel time as unpaid commuting time for hourly employees. However, you should be aware that if an employee must travel a significant distance to get to the office, his travel time may have to be paid—and could result in overtime.

OSHA and workers’ comp. You should address safety and workers’ compensation issues before an employee sustains an injury while working from home or ad hoc telecommuting. While the Occupational Safety and Health Administration (OSHA) doesn’t typically inspect home worksites, if an employee sustains an injury while he’s telecommuting, the injury may still be recordable or reportable.

For example, if a telecommuting employee drops the laptop she uses for work on her foot and ends up in a cast, her broken foot would generally be a recordable OSHA injury as well as a compensable workers’ comp injury. If the house burns down because the wiring is bad and the employee dies in the fire, it wouldn’t be an OSHA or a workers’ comp issue because the fire was related to a defect in the home where the employee lived.

Employees who work from home or another remote environment should be thoroughly trained on the appropriate process for reporting any injuries that may be work-related. Employers frequently express concern that an employee will injure himself playing softball, waterskiing, or doing something entirely nonwork-related and then claim the injury was sustained while he was performing work at home. Careful policies requiring telecommuters to report any injuries promptly, and closely monitoring all employee injuries can help you alleviate such issues. However, keep in mind that there’s no perfect way to ensure that potentially compensable injuries are in fact work-related, whether they happen at a home office or on a remote jobsite.

Third-party visitors and liability. Issues may also arise if a third-party visitor to an employee’s home office is injured. For example, you may be liable if a customer who goes to an employee’s home to evaluate your company’s product trips over the employee’s dog and breaks his arm. When you develop your telecommuting policy, you should check with your insurance company to make sure you have appropriate coverage for such incidents.

Data privacy and security. A critical telecommuting issue many employers may not consider is data security. How do you ensure that telecommuters comply with your computer use policy if they access from unsecure places or myriad devices?

It’s critical to ensure data privacy and security for both home-based and ad hoc telecommuters. If employees are remotely accessing your internal computer systems or removing data from your premises to work remotely, your privacy and security policies must address when, how, and by whom data may be accessed. Ensure that all information is password-protected and encrypted, and inventory all devices, recording their make and serial number information so you can track stolen or damaged devices. It’s advisable to audit the security measures on each device and enable GPS and remote wiping capability, if available, on any devices used for conducting company business.

Your policies should make clear that any equipment employees use to accesses company-based systems may be monitored by the company and remotely wiped if necessary. Employees should understand that they may be required to turn over their devices for review and evaluation by the company. They should also understand that any improper access or use of data, such as a ransomware attack, must be reported to the appropriate person immediately to prevent other systems and data from being compromised.

You also need to discuss with incidental or ad hoc telecommuters whether the Wi-Fi they use carries an unacceptable risk. Multiple studies have shown that free Wi-Fi ports often contain viruses and other malware. Many employees will click “Yes” on a terms of use agreement, not understanding that they’re also allowing the Wi-Fi provider to download software onto the equipment they’re using. Free sounds great until it shuts down your system, spams your client list, and compromises your bank account information. In developing any privacy and security policy, don’t forget the practical applications. It usually isn’t the software that creates the problem—it’s the people using it.

Discrimination. Finally, it’s important to determine whether your telecommuting policy is fair and applied equally to all employees. Telecommuting can be a source of contention in disability discrimination cases when employees demand to telecommute as a reasonable accommodation under the Americans with Disabilities Act (ADA). If you allow telecommuting and you have telecommuting policies in place, it can be difficult to decline an employee’s accommodation request.

Certain jobs lend themselves better to being performed remotely. As an employer, you’ll want to carefully assess which jobs will allow employees to work from a remote location either full-time or part-time and which jobs truly require employees to be present on-site. You should do an assessment of essential job functions before you receive a request for accommodation so you can explain to the Equal Employment Opportunity Commission (EEOC), the Iowa Civil Rights Commission (ICRA), or any other administrative agency looking into a discrimination charge that an employee’s request to telecommute was unreasonable.

Creating Your Company’s Telecommuting Policy

In assessing or creating a telecommuting policy, keep a few key elements in mind:

  • Understand how your employees currently work remotely as regular or incidental telecommuters. Seek their input to determine how or if telecommuting is appropriate for your company.
  • Make sure your policy addresses your expectations for when employees will be in the office, how they will be available, and how they will maintain the security of your data and equipment.
  • Remember that the key to a successful policy is careful planning, employee input, and cooperation as well as follow-up by the employer to ensure accountability.

Jo Ellen Whitney is an Attorney at Davis Brown Law Firm. and is the Editor of the Iowa Employment Law Letter. You may contact her at joellenwhitney@davisbrownlaw.com.