Legal Pitfalls of Employees That Telecommute

Telecommuting could seem like a win-win situation for employers and employees, especially with the price of gasoline. However, there are a few pitfalls HR managers should watch out for when company managers suggest (or employees request) telecommuting:

(1) How do you know when the employee is working? As with any position, especially one that is not exempt from the overtime pay requirements in the U.S., you need to know when the employee is working and when he or she is not. Telecommuting jobs thus lend themselves, for example, to computer-based jobs where the company can tell when the employee is logged on. However, as one of my clients learned—that may not be enough. An employee was supposed to be signed in to Skype when working. Although the sign-in was obvious, the employee did not respond to queries sent by a manager. Thus the company questioned what the employee was actually doing. When someone works at home, be sure to have an accurate way to tell when (and if) he or she is working.

(2) What happens if the employee gets hurt? When employees get hurt on the job, payment for those accidents and injuries is covered by Workers’ Compensation insurance. Additionally, the company has obligations under the Occupational Health and Safety Act to report accidents at work. What happens when a telecommuting employee gets hurt working at home? It’s possible that workers’ comp might cover—but you as an employer may have little control over your employee’s "workplace" when he or she is working at home. As part of agreeing to such an arrangement, it might be prudent to remind the employee to abide by the health and safety regulations that would apply while at work and to, for example, keep their work-space free from clutter or wires running across the floors that might cause one to trip, and other such hazards.

(3) Which Employment Law Will Apply? If your employee is telecommuting from another state, remember that he or she will likely be covered by the employment laws (including the wage and hour, and wage payment laws) of that other state. You also might need to get unemployment insurance for that state, as well as arrange to pay income taxes for that employee to that state.

(4) Reasonable Accommodation and Discrimination Issues: As with any employment policy, telecommuting needs to be applied without discrimination. However, telecommuting may be a reasonable accommodation under the applicable disability discrimination laws. Companies need to make sure that such policies are applied without causing legal issues for the company. For example, one company allowed a long-term manager with a serious illness to telecommute two days a week. A lower level, relatively new employee also requested such an accommodation for her disability as well—but the company felt that her job could not be performed at home appropriately and without supervision. Many factors go in to determining what to do in such a situation, but HR Managers should be alert to these situations so that managers are not making these decisions without consulting HR first.

(5) How do you protect you network? Employees remotely connecting to your network could inadvertently introduce viruses, malware, etc. While of course you would have your usual firewalls in place, think about whether you need to require employees to have any particular virus protection or other software on the equipment they will be using to access your network.

(6) How do you protect your confidential information? It is more difficult to prevent employees from down-loading confidential information when they utilize their own computer equipment. Be sure to require any telecommuting employees to consent to company monitoring of their activities even when working from home.

Having written telecommuting policies, including requiring telecommuting employees to sign a telecommuting agreement, can go a long way to protect the company. Telecommuting can be advantageous to both employees and employers, but the legal issues in doing so need to be kept in mind and actions taken to best protect the company in this situation.