Legalities of Telecommuting —Fiorenza
ANEW societal struggle based not on physical characteristics but instead on values, family dynamics and technological changes is once again transforming the workplace. As most human resource managers will tell you, employees belonging to the newer generations (i.e., post-Baby Boomers) are demanding a balance of home and work life.
They value personal relationships (be they family or friendships) more than they value status or title. Consequently, creative employers are developing ways of helping employees achieve this balance, while maintaining morale and maximizing productivity.
Given the technological advances involving computers and the Internet, “telecommuting” has become a viable alternative for some of these employers.
Make no mistake, “telecommuting” or “home-based employment” is transforming the American workplace. One recent study, completed by the Bureau of Labor Statistics, estimates that nearly 10 million workers, or 15 pecent of the work force, routinely work from home at least part of the time. But, along with this transformation come numerous management challenges that employers must be prepared to meet.
What’s the Advantage?
Properly utilized, introducing telecommuting to the workplace can help employers and their employees achieve basic work-related goals. For employers, the ability to attract and retain top talent can be greatly enhanced when a remote site work option is put on the table. Potential employees who are unable or unwilling to relocate, or have other basic logistical problems with a particular work site, are available in a telecommuting work environment.
Employers have also experienced (sometimes surprisingly) an increase in productivity when employees are provided the opportunity to work remotely. Travel time, break time and general work distractions are eliminated for telecommuting employees.
More often than not, such employees concentrate on getting the job done and then moving on with their day.
As expected, employers also experience significantly reduced overhead when their physical space demands are not driven solely by the need to house people at work. The technology required to allow access to work systems and foster remote communication through Web-based meetings, teleconferencing, etc., are usually far less than the cost of physical space.
Problems arise when employers experiment with home-based employment without first analyzing the threshold issues involved with the arrangement. Here are some of the primary areas of concern.
Measuring and monitoring performance. What methods will be used to evaluate the home-based employee? Are “attendance” measures even relevant? When problems arise, how will coaching, discipline and documentation measures be undertaken, so that all of the traditional human resource “progressive discipline” techniques are undertaken and documented?
Wages, hours of work and other compliance concerns. Many employers experimenting with the telecommuting work environment fail to keep in mind that virtually all basic human resource and employment law concepts impacting the workplace apply equally to telecommuting employees. Some employers mistakenly believe remote employees are independent contractors, simply because they do not report regularly to the workplace.
Exempt and non-exempt workers. Employers must also wrestle with the application of state and federal overtime laws impacting exempt and non-exempt workers. Non-exempt employees owed overtime while performing a job in the workplace are equally entitled to overtime when performing the task at home. It is incumbent upon the employer to establish accurate job descriptions that classify the position for overtime purposes and time-keeping/recording procedures, which will help establish the employer’s compliance with overtime and other laws.
General recordkeeping. Overtime isn’t the only issue. Meal and rest breaks, training time, on-call time, travel time and expenses, all need to be accurately documented and recorded to maintain the employer’s compliance with respect to remote employees.
Don’t Forget Americans With Disabilities Act
Telecommuting has been recognized as a reasonable accommodation that employers should consider for qualified individuals with disabilities in their workplace. Unless an undue hardship is present, employers should generally provide a disabled worker the opportunity to work from home if the essential functions of the job involved could be performed in this manner, but not in the workplace itself.
When employers generally utilize home-based employment arrangements, they in effect establish that telecommuting is a reasonable accommodation for their workplace. An employer utilizing telecommuting for some employees would be hard pressed to refuse a similar accommodation for a disabled employee who can perform work at home.
How to Get Started
Thinking of trying out a telecommuting work arrangement? Don’t do so without first thinking through and developing a policy addressing at the least the following.
What positions are appropriate for telecommuting? By defining the positions available for telecommuting, you can help establish in advance your rationale for saying “no” to this option when it is not appropriate.
How many days per work are involved? Is the entire job performed away from the work site or only a few days per week/month? Have you reserved the right to discontinue the telecommuting arrangement at your discretion? How will schedules be established/changed? Will notice be given? Is it based on workload or other factors?
Which employees are eligible? Your policy should establish parameters for telecommuting eligibility and how preference will be accorded among eligible employees. Some policies, for example, only make telecommuting options available for employees with exemplary performance evaluations or with many years of service. In this way, the work relationship also serves as a performance motivator.
Will benefits be different for telecommuting employees? Do they receive the same vacation and other time-off policies? Do your insurance companies properly address liability concerns in the home-based employment context? Workers compensation, disability, property and general liability policies should be carefully reviewed in this regard.
What about equipment? It is important to establish ownership and proprietary rights associated with computers and other equipment used in the telecommuting setting. Can the equipment be used for anything other than work-related purposes? If so, what are the boundaries?
Are there restrictions? Finally, consider whether special restrictive covenants apply to your telecommuting situation. Is your confidential information properly protected? Do your non-compete and exclusive-employment requirements properly apply to the telecommuting work environment?
With these cautions in mind, a telecommuting work relationship can reap significant benefit for both employers and employees. It’s a trend that will continue to grow and an option that will be actively sought by talented employees.
It is a concept every progressive graphic arts employer will have to understand and, at some level, embrace. PI
—Nicholas J. Fiorenza
About the Author
Nicholas J. Fiorenza is managing partner of the employment law firm of Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., and long-time association counsel to the Printing Industries Alliance and its members. He is also president of Delacroix Consulting Group, the human resources consulting component of the law firm. For more information, visit www.ferrarafirm.com.