Rewards, Risks and Legalities of a Telecommuting Workforce

In today’s electronically connected workforce, telecommuting, or working from home, is easier than ever. Some research indicates that higher productivity can be achieved when employees work from home.

At the same time, there are an increasing number of legal implications that should be considered when allowing employees to work from home. Both federal and state laws may apply when the focus moves from the traditional “brick and mortar” office space to the converted laundry room, now filled with a desk and computer, in an employee’s basement.

FMLA Jury Award for Denial of Working-From-Home Request

The changing era of telecommuting means new case law as courts grapple with
a workforce that may be trading suits with pinstripes for pajamas.

A recent federal appeals court decision illustrates that one must be extremely careful when analyzing an employee’s request to work from home, which could trigger obligations under the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). In that case, an employee requested and received permission from the employer to work from home two days per week, using FMLA time to care for her son during these two days as needed. Several months passed with no significant issues under this working arrangement when the employer informed all employees they no longer could work from home. The employer gave this worker only one working day to find day care arrangements for her son. In addition, the human resources representative erroneously told her that the FMLA did not cover care for her child, only leave for therapy and doctor visits. When the employee was unable to find child care in such a short time, the employer terminated her employment.

The jury determined that the company had retaliated against the employee for asserting her FMLA right to take leave necessary to enable her to take care of her sick child for several hours, two days a week. As she was a valued and experienced employee who had worked for the company at home two days a week without the company’s complaining, the company had no compelling reason to fire her, according to the appeals court that upheld the verdict.

This legal trend is likely to continue with courts more willing to conclude that an employee’s request to work from home is reasonable and workable in order to address a medical condition or care issue.

What About the Fair Labor Standards Act (FLSA) and Working From Home?

Employers need to educate their telecommuting hourly/nonexempt employees on what qualifies as “work” and how to keep accurate time records. The FLSA is explicit in saying its rules apply “to work performed away from the premises or the job site or even at home.”

The Department of Labor recognizes the difficulties of tracking hours worked when an employee telecommutes and is willing to accept any reasonable agreement of the parties, which takes into consideration all of the pertinent facts of his or her telecommuting agreement.

Therefore, it is up to the employer to:

  • Establish a clear telecommuting policy that is specific to the employee’s position.
  • Effectively communicate the policy to its employees who may be in a position to work from home.
  • Have the employee sign an agreement outlining what is expected and how he or she will need to document time spent working.

Workers’ Compensation at Home

Employees are covered by workers’ compensation laws when working from home because most courts have considered home locations to be an extension of the workplace.

As a condition of continuing in a telecommuting arrangement, there should be an agreement that the employee shall maintain safe conditions in the home workspace, and adhere to the same safety standards and practices as apply on the company’s premises.

Employers also need to have reporting and investigation procedures in place. It’s unlikely there will be any witnesses to an accident. Cases turn on the facts, including:

  • Time and location of accident within the home
  • What the employee was doing when the injury happened
  • The employer’s policies for keeping home workplaces safe

Be Aware of Privacy and Security Rules

It is recommend that employers take steps to maintain the privacy of company information, including signing a nondisclosure agreement. They should also ensure they can retrieve files from telecommuters. Also, employees who are working from home need secure access to company information, including using encryption, passwords and network firewalls.

Equal Application of Telecommuting Policies

Workplace location is considered a “term and condition” of employment, which means that a telecommuting policy must be applied in a nondiscriminatory manner. One important initial determination is whether the right to telecommute will be offered to all employees. If a telecommuting request occurs on an ad hoc or project basis, ensure that your workplace policy sets out established guidelines for allowing employees to work from home. Without objective criteria, refusals to allow telecommuting may result in a discrimination claim.

“When I was at home, I was in a better place”

So said the bard, William Shakespeare, who may have foreshadowed today’s changing workplace locations. Whether telecommuting makes sense will be a company-by-company decision, though preparation and compliance checklists make up an important foundation to address this emerging trend.