It is more likely than not that you have allowed one or more of your employees to work from home, either on a sporadic or regular basis. If not, you may face the challenge soon.
The advent of the internet, cloud computing, environmental and community impact incentives, economic efficiency and the realities of our daily lives have made telecommuting extremely commonplace and attractive to many businesses. However, even as telecommuting becomes a widely-accepted method of completing work, many employers have likely not stopped to think about the legal risks associated with the practice.
The following example illustrates just a few of the legal risks associated with telecommuting:
Jenny works from home and often sends you work product from her home computer. One day, while talking to a client on the phone, she goes into the kitchen to make a sandwich when she slips and falls. Her shoulder really hurts so she decides to go to the hospital. On her way, while making a phone call to postpone a meeting, she broadsides another car, killing two people. She is rushed to the hospital where she is treated, but will not be able to work for several weeks, if not months. You decide you can’t wait for her to return to work and fire her. A week later, you realize that many of your documents are saved on her home computer.
Jenny’s employer has a cybersecurity concern because potentially-sensitive client data may have been transmitted via unsecured computer systems that are susceptible to hacking. Additionally, it may be difficult to recover information stored on Jenny’s personal computer and cell phone that you may need to address business or litigation issues. Moreover, Jenny’s kitchen and car accidents may implicate concerns about workers’ compensation coverage, the Family and Medical Leave Act, and the Americans with Disabilities Act. The car accident alone may expose her employer to general tort liability because Jenny was conceivably operating within the scope of her employment when she was talking on her cell phone and hit the other car. And this example doesn’t even touch concerns about managing Jenny’s time for the purposes of state and federal wage and hour rules and regulations.
How many legal risks did you identify? The good news is that these risks are manageable. Reducing potential liability does not require a significant investment of time or money, but it does require that you think carefully about the ways telecommuting can best benefit your business. The following tips will help you as you begin to assess the feasibility of telecommuting or re-evaluate how you currently manage your program:
- Telecommuting is not for everyone and not for every position. Evaluate your team and assess which positions might be good candidates. If you are considering telecommuting only for occasional, as needed, use (such as inclement weather, etc.) make sure the expectation is clear in company policy.
- Examine weaknesses in your technology use policy to determine if you have concerns about cybersecurity. What information will be transmitted and on what system? Have you ensured that you will be able to recover information stored on personal devices?
- Talk to your workers’ compensation provider about your policy and its exclusions.
- Think about how you will manage the employee’s time keeping to ensure your company is compliant with state wage and hour laws. If your employees are non-exempt, they still must record all hours worked and you are not exempt from record keeping requirements.
- Anticipate whether your telecommuting and leave policies, or lack thereof, will impact coverage under the Family and Medical Leave Act or a request for reasonable accommodation under the Americans with Disabilities Act.
- Formulate a telecommuting agreement that defines the office space, the scope of employment while working in that space, technology use and work expectations, regardless of whether the employee works from home regularly or only on occasion
Allowing telecommuting can be a tremendous asset to your business if it is well-thought out. It can increase effectiveness and greatly impact employee morale. But as you take your business and your employees to the next level, do not forget to protect yourself against the unexpected risks associated with a telecommuting arrangement.
About the author: Nichole Atallah is an associate with PilieroMazza in the Labor and Employment Group. She may be reached at natallah@pilieromazza.com.
