Labor Letter, February 2013: Should Your Employees Telecommute?

by Fisher Phillips
Contact

Technology advances and innovations bring advantages and efficiencies. But, sooner or later, most changes bring potential disadvantages as well. In the end, we can’t resist technological change: the trick is to leverage the advantages against the disadvantages and be prepared to address the downside. 

Nowhere is this more true than the workplace, wherever it might be. More frequently, employers are using telecommuting as a means of increasing productivity and efficiency. In 2009, 34 million workers in the United States telecommuted at least part of the week, and estimates are that by 2016, 63 million workers (43% of the work force) will telecommute. 

An employee’s at-home “virtual office” might consist of a cell phone and a laptop computer. These relatively inexpensive and portable items permit an employee to work just about anywhere there is a wireless network or cell coverage. In addition, it’s important to note that with these technologies, even employees who report to a brick-and-mortar office each day will be capable of informally “telecommuting” at all times of the night and day, for example, by answering emails over the weekend. 

The advantages have been well established: increased employee productivity; increased job satisfaction; reduced absenteeism; lower employee turnover; reductions in fixed expenses, such as energy costs, office rental, and parking; improved customer service; improved employee morale; and reduced employee stress and improved health. 

However, with these advantages come potential pitfalls. Telecommuting raises unique legal issues that employers need to address with established policies and procedures before they become a liability. 

Wage Laws

Even if you permit an employee to work from home, you are responsible for compliance with state and federal wage-hour laws, including paying non-exempt employees overtime for all time worked in excess of 40 hours in a workweek. If an employee has the flexibility to be more efficient by taking calls after hours or even when on vacation, or if the employee answers emails late at night or during the weekend, that time might count as compensable work time. 

There are many options for keeping track of this extra time, but the important point is to make sure that you 1) have a procedure in place for recording the time worked by telecommuting employees, and 2) have a policy in place clearly delineating what work is permissible and when. One approach is to record automatically, by computer, the number of hours worked online each day and week. Also, employers can establish policies to make it clear that employees are not permitted to work more than 40 hours. 

Safety

Employers are responsible for providing a safe workplace to all employees, even employees working at home, under the Occupational Safety and Health Act. Workers’ compensation laws still apply to telecommuters, even when they are working at home. To address these issues, you can require telecommuters to have a designated workspace that has been inspected and approved by the company to address workplace safety obligations. You can even advise telecommuters that the designated workspace may be subject to random safety inspections and require that the telecommuter maintain safe work practices. 

Proprietary Information

When an employee works at home, from a remote computer on a wireless network, valuable confidential and proprietary information might be less secure. To maintain the confidentiality of this information, require telecommuting employees to follow adequate security procedures, including the use of passwords and protected networks. You should also evaluate and maintain effective security measures for employees using computers and the Internet for business communications when out of the office. 

Discrimination Laws

Employers are obligated to protect employees from discrimination and harassment, whether they work at home or in the office, and any telecommuting policy must be implemented in a nondiscriminatory manner. In addition, permitting an employee to work at home might be a form of reasonable accommodation for an employee with a disability under the Americans with Disabilities Act or a similar state law. 

Driving And Texting

Regardless of work locations, the entire work force has access to smart phones that could be used to perform work while driving. Employers should be wary about the potential liability that could result from an accident involving an employee who is engaged in work-related texting or even talking on the phone from behind the wheel. Institute appropriate policies and procedures, including policies prohibiting texting while driving. 

For more information contact the author at EUhl@laborlawyers.com or (207) 774-6001.


Reprinted from Mainebiz, with permission. www.mainebiz.biz.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!