James Ferber

Monday, 22 September 2003 11:51

Telecommuting troubles

With approximately one out of five workers in the United States telecommuting to some degree, employers without a comprehensive telecommuting policy are only a click away from costly legal problems.

There are several issues to consider when drafting a policy.

* Safety. Workers' compensation covers on-the-job injuries, including those suffered at home. So who is responsible when an employee working at home slips on the kitchen floor while getting a cup of coffee? Potential liability issues extend beyond the employee to injuries sustained by business visitors and even the employee's child.

* Wage and hour issues. Telecommuting creates a number of wage and hour issues for nonexempt employees, including verifying hours worked, enforcing break and meal periods, controlling overtime and determining if employees should be paid for time spent on-call or traveling to a company facility.

* Privacy. To effectively supervise virtual workers, employers must monitor all online communications, including e-mail and Internet usage. Depending on the employee's function, the employer also may need to monitor phone conversations, which can intercept personal information.

* ADA accommodation. Under the Americans with Disabilities Act, employers must provide reasonable accommodation to otherwise qualified employees with disabilities. Yet, the courts are split on whether telecommuting is a type of accommodation. Requests for telecommuting accommodations should be considered on a case-by-case basis.

* Confidentiality. Employers must act to protect confidential and trade secret information. Family members, friends and visitors could easily access trade secrets, payroll and other financial data, as well as other sensitive information, without the proper precautions.

* Jurisdictional issues. Employers utilizing virtual workers in more than one state must consider each jurisdiction's employment laws on privacy, confidentiality, monitoring, surveillance and other topics.

To address these issues, an employer with telecommuting employees should establish a policy covering:

* Positions and employees eligible for telecommuting

* Work schedules, procedures for recording hours and performance of overtime work

* Telecommuters' responsibilities for health and safety, and the employer's right to inspect home offices

* Ownership, maintenance and use of office equipment used for business purposes

* Conditions of Internet and intranet access

* The employer's right to monitor communications

* Telecommuters' obligation to guard confidential information

* Liability for injuries occurring at the home office

* Telecommuters' responsibilities to abide by company policies and procedures

* The employer's right to terminate a telecommuting program without cause or notice

With an enforceable policy in place, employers can avoid expensive and time-consuming legal disconnections along the telecommuting highway. James Ferber is managing partner at Littler Mendelson, Columbus. Reach him at (614) 463-4210 or JFerber@littler.com.