Telecommuting is a workplace option that permits employees to work at an alternative worksite, such as the home, for one or more days per week. Partial or total substitution of telecommuting for an employee’s daily commute to work has been made possible largely through the use of computer technology. Although the term was coined in 1973, the concept is now being used by large and small companies alike, which has advantages for both employer and employee.
While as of 2018, only 24% of U.S. employees did all of some of their work from home, telecommuting currently is a trend spreading even faster than COVID-19. Many companies are now asking their employees to telecommute as a social distancing technique to help contain the spread of coronavirus, while keeping employees productive.
The telecommuting “virtual office” might consist of a phone, laptop computer, facsimile and/or scanner and voicemail capabilities. Since these items are now widely available and affordable to most employees and companies, employees can work virtually anywhere. An employer considering telecommuting as an option for employees might expect the following benefits:
There are also some disadvantages – and legal risks – of employee “telecommuting,” including:
Telecommuting can also be one way of providing accommodation to individuals with disabilities but does not necessarily replace the need for physical workplace modifications. A qualified employee or potential employee with a disability who is offered the option of working at home may become a valued and productive employee through a telecommuting arrangement that better accommodates the individual’s disability. Further, federal and state disability discrimination laws may require an employer to offer “work at home” if that arrangement would be a feasible “reasonable accommodation” for a disability, that is, if telecommuting would allow the employee to perform the essential functions of the job and the telecommuting would not impose an “undue hardship” on the employer. Thus, “work at home” might be required in conjunction with a disability, including pregnancy-related conditions.
Employers normally have great flexibility in the design and implementation of telecommuting arrangements with their employees, while all of these may not be feasible, or even necessary to implement during a pandemic, a few parameters that should be carefully considered:
One of the big issues for employers who have employees who are working temporarily as telecommuters is helping them to stay motivated and connected with the company and co-workers.
Employers should first identify the job categories for which telecommuting would be appropriate, rather than immediately selecting the individuals. Certain types of jobs are more easily adapted to telecommuting, such as:
Certainly, many other jobs are adaptable to telecommuting. Employers should review the job functions in the business and consider whether particular administrative and support positions can be accomplished away from the office. As a general rule of thumb, if an employee can close their office door for up to eight hours and effectively accomplish their job without the need for face-to-face contact with other employees, that job is probably adaptable for telecommuting.
After identifying job positions, an employer should consider individuals who will be able to work by telecommunicating. Employees who make good telecommuters are generally those who:
While the foregoing are often components to successful telecommuting relationships, employers should ensure that this arrangement is not offered to employees arbitrarily or in a manner that could be portrayed as discriminatory. One method that can be utilized by employers to ensure that telecommuting relationships are not viewed as arbitrary is to establish a policy that employees in a department that allows telecommuting must have worked for the employer for a minimum amount of time to be eligible to participate in a telecommuting assignment. Employees should also understand that telecommuting is not guaranteed for any particular period. If the company’s workforce changes or the employee’s job duties change, it may become impractical to continue to allow an employee to telecommute.
When potential employees who live and work in states where the company has not previously had operations, there are many issues that will need to be considered in advance of making any such hiring decisions.
Many states have their own wage and hour laws that differ from the federal Fair Labor Standards Act (FLSA). Before making a job offer to a potential remote worker from another state, it is important to review the following requirements for the state the worker resides in regarding:
breaks and mealtimes
wage statement/pay stub inclusions
salary thresholds for exempt v. nonexempt employees
expense reimbursement for office supplies and equipment.
Not only do many states have different leave entitlements laws but this is also an area where cities and counties have also gotten involved. Such entitlements may include:
paid and unpaid sick leave
domestic violence leave
organ and bone marrow transplant leave
jury duty and witness leave
Employers should consult the laws in this area in any state where a potential remote employee resides to ensure it is prepared to provide all of the leaves necessary if the individual is eventually hired.
Generally, an employee’s performance of job duties will constitute business operations by the employer even if confined to the employee’s home. Other areas where due diligence would be required before making an employment offer are:
required workplace posters
state and local withholding taxes
workers’ compensation insurance.
Employers need to be aware of these issues and others that may arise by employing workers that live and work outside of the company’s existing workplace(s) before making an offer of employment to individuals outside of normal jurisdictions.
It would also behoove employers to be diligent in obtaining signatures from remote workers on all acknowledgements and releases of policies and procedures that are required of onsite workers.
Employees who are selected for telecommuting must be able to set up an appropriate workspace at home. The space need not be an entire separate room, but should be well defined, in a safe location and away from distractions. Adequate space must be available for files, office supplies and telecommuting equipment. Other considerations include lighting, security of work materials, comfort and safety.
Employers may consider providing some office furniture, such as a comfortable chair and desk. Many employers provide necessary computer and other telecommunications devices, but it is advisable to remind employees that such equipment is to be used for work-related purposes.
A service maintenance policy for employer-provided equipment should be considered to provide for quick and cost-effective service in case of equipment failure. Verify that existing insurance coverage of company equipment will apply to the telecommunications equipment off-premises. If not, the employer should obtain the necessary level of coverage to protect its investment in employer-provided equipment.
The biggest difficulty encountered by employers that allow telecommuting is how to manage the telecommuter. Supervisors must be trained to focus on an employee’s work product, rather than attendance in the office. Goals and tasks to be performed must be specific and well communicated and must provide some measure of the employee’s productivity. When productivity cannot be measured based on tasks completed, managers do not have an effective method to measure an employee’s performance. Similarly, employees often feel that their efforts go unnoticed.
Supervising telecommuting employees can also be difficult. Employees may not put in a full-day’s work, may engage in personal pursuits on company time and may claim overtime in excess of their actual work hours. Because of the inability to observe the employee’s actual hours worked, many employers are more comfortable allowing exempt employees to telecommute than allowing nonexempt employees to telecommute.
Employers who hire telecommuting employees and never meet the new hires, on a face-to-face basis, could also be subject to potential liability regarding completion of Form I-9s. Specifically, employers with a remote workforce need to make sure to perform an inspection of original documents. Recently, a Minnesota-based staffing company was faced with $227,000 in civil fines when a U.S. Immigration and Customs Enforcement (ICE) investigation found that the individual who signed the employer certification section of the I-9s never actually touched and looked at physical documents of the applicants to complete Section 2 of the I-9.
Finally, the initial cost of establishing a telecommuting worksite may be significant. Not only may expensive computer and facsimile hardware need to be purchased, but the telephone communication and computer network capabilities of employers and employees may also need enhancement and technical support.
For a telecommuting program to succeed, management support is essential. Some managers may be reluctant to allow telecommuting, because it is a change in the way they have supervised employees in the past. However, with proper training, these same managers can learn to provide the necessary supervision within the telecommuting concept. The goal is to recognize that under the right circumstances, many employees can perform as well working remotely as when working in an office environment and some may actually do better.
Effectively supervising the telecommuter requires strong management skills. When choosing the right supervisor to manage the telecommuting program, employers should focus on the qualities discussed below.
Make sure supervisors understand the time and resources required to complete tasks. In addition, supervisors must be particularly adept at distributing work among employees when one or more of the employees are telecommuting.
Supervisors must be able to communicate to employees what needs to be done, when it must be done and who is responsible for seeing the project through to completion. The best method of communication, written or verbal, will depend on the individual telecommuter and supervisor. Just as with other supervisory circumstances, the time managers spend in effective communication of their expectations will dictate the quality of the work produced by the telecommuter.
Supervisors must be able to develop with the telecommuters a method of communicating attainable and timely goals. Telecommuters who clearly understand the workload will be more focused in their work if they are required to maintain and follow a timetable. At a minimum, the timetable should list tasks or projects for completion and a time when they must be finished. The bottom line is that telecommuters need to clearly understand what is expected of them and when goals are not met or performance is unacceptable, they need feedback.
Supervisors should set up periodic reviews to monitor progress on projects or tasks for which the telecommuter is responsible. Any unsatisfactory performance should be brought to the employee’s attention immediately in writing so that work habits can be improved. If the employee is written up or receives another type of written counseling, the employer should obtain the employee’s acknowledgment that the document was received. Effective supervisors will be able to manage for performance and results, as opposed to managing by observation alone. Since telecommuters must be supervised based on their performance and not their activities or conduct in the workplace, supervisors must be able to monitor and evaluate performance without being in close proximity to the employee.
Supervisors must be able to set up avenues for the telecommuters to communicate with each other when necessary for the completion of certain projects. The ability to “network” with other telecommuters will also help reduce any feelings of isolation for the telecommuter. If possible, the telecommuter should be expected to come into the office on certain days for meetings and interaction with other employees and supervisors. Supervisors should also invite the participation of telecommuters in office activities, such as holiday celebrations, working lunches and after-work get-togethers.
Telecommuting personnel are protected by all laws governing employment relationships, including the non-discrimination/retaliation, wages and wage payment and benefits laws. Employers must carefully track and pay for the hours worked by “nonexempt” (hourly) telecommuting employees in order to comply with the federal Fair Labor Standards Act (FLSA). Although handwritten timesheets completed and signed by the employee may suffice, a more reliable record is preferred. For example, if the employee is required to use the company’s computer system while performing “work at home” duties, computer data showing the times when the employee logged on/off the system could be excellent evidence of compensable “hours worked.” Although the precise method of tracking “hours worked” can be chosen by the employer, the goal is to avoid a subsequent nonexempt telecommuter’s claim for payment of more hours than are shown in the employer’s records.
Management employees may also be telecommuters and will not lose their exempt status under the FLSA, provided they can still meet the duties test as required under the FLSA. See Chapter 10: Wages and hours for more guidelines for exempt status.
A variety of federal, state and local laws affect telecommuting. Below are some of the major issues raised by those laws.
The Occupational Safety and Health Act (OSHA) is designed to provide a safe working environment for every American worker. It is unclear whether OSHA’s expansive definition of “workplace” encompasses the telecommuter’s home office, but if it does, then OSHA enforcement authorities may assert that the employer has an obligation to ensure that the telecommuter’s workplace is free from unreasonable hazards. An employer should not inspect workers’ home offices for safety, even if the employee is telecommuting. OSHA actually bars such inspections as a potential invasion of privacy. It is important to remember, however, that OSHA’s function is to prevent illnesses or injuries caused by unsafe workspaces, no matter where they are. A telecommuting employee who is concerned that the home office is unsafe may make specific complaints to OSHA and OSHA may then contact the employer about the problem. If OSHA determines a real hazard exists in the employee’s home workspace, it has the authority to prohibit the employer from having employees work at home and/or it can assess a fine to the employer. But if there’s an accident that an employee feels is the employer’s responsibility, the employee may file a claim for workers’ compensation.
Because OSHA may monitor ergonomics, employers in the future may be required to ensure that telecommuters have adequate desk and seating facilities in their homes. In early 2000, OSHA issued an interpretive letter asserting that it had jurisdiction over home offices. OSHA withdrew the letter due to the congressional and public backlash, but in the letter, OSHA asserted that is has always had the authority to regulate home offices.
To protect against possible OSHA issues that may evolve, employers should require that any telecommuting employees represent to the employer in writing that they have a safe workplace at home in which to work. If an employer receives a citation based upon an injury or unsafe condition by an employee working at home, the employer will, therefore, be able to argue that the unsafe condition existed as a result of an isolated act of employee misconduct, which is a defense to an OSHA citation. For more information, see Chapter 33: Safety and health.
Because the telecommuter is not bound by the usual office hour routine, employees who are not exempt must be carefully monitored regarding hours worked. Otherwise an employer could face substantial liability for overtime. This is especially true because a telecommuter’s performance must often be measured by production. If a telecommuter feels compelled to complete a project, the telecommuter may work overtime on that project without management approval and/or knowledge. Because the Department of Labor defines work hours as those hours during which an employer “suffers or permits” an employee to work, the employer must have an agreement with the telecommuter that will provide monitoring and/or reporting of hours worked by non-exempt employees.
Some non-exempt positions may be easier to monitor and be more appropriate for telecommuting than others. For example, if a customer service representative has to be logged on to the employer’s computer and telecommunication system to perform work, it is easy to monitor the hours that the employee is logged on and the activity that occurs while logged on to identify inactive periods. If the employee is working on personal computer equipment or working in a capacity that does not require them to be logged on to the employer’s equipment, the employer will have a more difficult time monitoring activity and must rely more on the employee’s productivity as a gauge of their working hours.
The Americans with Disabilities Act (ADA) does not require an employer to offer telecommuting to all employees. However, if an employer does offer telework, it may need to consider allowing employees with disabilities an equal opportunity to participate in such a program.
The ADA, as amended by the Americans with Disabilities Amendments Act of 2008, may require employers to allow telecommuting by employees if telecommuting is a reasonable accommodation for their disabilities. Courts have reached different decisions on whether an employer is obligated to make an employee a telecommuter as a reasonable accommodation. The Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidelines state that an employer must allow qualified employees to work at home if the accommodation would be effective and would not cause undue hardship to the employer. Thus, whether telecommuting will be required as an accommodation will depend upon the nature of the job duties and the other potential accommodations that may be available. Therefore, if the specific location of the work site does not matter and is not essential, employers should consider whether or not providing telecommuting as an accommodation is viable.
Employers should be aware that by adopting a telecommuting policy, they could make it more likely that a court or the EEOC, will find that telecommuting is a reasonable accommodation under the ADA. Conversely, the fact that a company policy does not permit telecommuting may not be sufficient to deny such a request.
Workers’ compensation laws apply to telecommuters. The difficulty is knowing whether the employee is working or on personal time at the time of the injury at home. To protect against fraud, the employer should provide specific policies and training about what a telecommuter should do if injured while on the job at home. In addition, employers may require that employees provide schedules of the dates and times they intend to work. Similarly, telecommuting employees should know that they must comply with all procedures pertaining to vacation and/or other time off. Finally, an employer may wish to require telecommuters to complete time slips that will provide some evidence of an employee’s time on task. See Chapter 31: Workers’ compensation.
There may be important “cross-border” issues arising from telecommuting employees. For example, if the company’s offices are located in an employer-friendly state (such as Indiana) but a telecommuter is working from a state having laws much friendlier to employees (such as Illinois or New York), the company may have to comply with the discrimination, wages/wage payment, leave and benefits laws of the state in which the telecommuter resides. Such compliance can be troublesome and expensive; for example, California’s laws mandate specific meal and rest breaks for employees and severely penalize employers for noncompliance. Additionally, California and some other states have mandated accrual of vacation time and paid sick time. Additionally, a company may be required to pay employment taxes to the state in which a telecommuter is resident (for example, to fund local unemployment compensation benefits) or to withhold from the telecommuter’s pay for income taxes payable to the foreign state. Further, the company’s liability insurance and benefits plans may not cover workers who are located in a state having different laws. Therefore, employers should carefully assess whether to allow telecommuting from a state outside of their primary location.
Thus, if the employer is going to allow telecommuting, it is wise to have both a formal “work at home” policy and a written agreement with the telecommuting employee specifically setting forth the terms and conditions of the relationship.
The employer should enter into a written agreement with its telecommuters, which provides, at a minimum, the points recommended in the Employer/telecommuter written agreement, which follows this policy.
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