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 Legal Best Practices
Magazine
Employers
Beware: Legal Ramifications of Telecommuting
By Sheri D. McWhorter,
J.D., SPHR
Published: November / December 2008
As gas prices rise, so do
the number of telecommuters, employees working from home
rather than from the employer’s worksite. And so, too,
does the potential legal liability for unwary employers
implementing telecommuting arrangements in their
workplaces.
The lurking legal minefields
associated with telecommuting span a wide array of
topics, from concerns over the confidentiality of the
employer’s trade secrets and proprietary business
information, to potential wage and hour and overtime
issues, to employee safety and job related injuries, to
possible employment discrimination issues. Although an
exhaustive discussion of the legal ramifications
associated with telecommuting is well beyond the scope
of this article, here we will give a brief overview and
touch upon as many as possible so that employers may
benefit from heightened sensitivity to these potential
trouble spots.
Proprietary Business
Information and Trade Secrets
Employers implementing
telecommuting arrangements list data security high on
their list of concerns. Employees working from home may
have sensitive information belonging to the employer
stored on the hard drive of the employee’s home computer
or easily accessed through an unsecured network
connection. Concerns range from protecting confidential
information from the prying eyes of housemates and
family members to possible theft and unauthorized
dissemination of the data by the telecommuting employee.
Employers are well-advised to develop a comprehensive
data security policy for telecommuting employees, to
train employees on the policy, and to vigilantly monitor
compliance.
Wage and Hour - Overtime
Issues
With more non-exempt
employees joining the telecommuting ranks, it is
imperative that employers establish a mechanism to track
the hours actually worked by the telecommuting employee.
Whether an employee is entitled to overtime is
determined based upon the actual job duties of that
employee, not by where the employee is performing the
work. Where an employee’s job duties cause the employee
to be classified as non-exempt under the Fair Labor
Standards Act (FLSA), the employer is legally required
to pay the employee for all hours worked. Where the
employee works more than 40 hours in a single workweek,
the employee must be paid overtime, even though that
work may have been performed from the employee’s office
at home, or on the employee’s laptop or PDA while the
employee is sipping coffee at Starbucks. Wage and hour
lawsuits, particularly class action lawsuits, are being
filed all over the country with employees seeking
overtime compensation for hours worked at home and other
locations away from the employer’s workplace. To avoid
liability for substantial overtime payments, employers
must develop and uniformly apply a method for tracking
and
accounting for all of the hours actually worked by
telecommuting employees.
OSHA – Home Office Safety
The Occupational Safety and
Health Administration of the United States Department of
Labor (OSHA) has stated in an advisory opinion that it
will not hold employers ultimately responsible for
ensuring telecommuters are maintaining safe home
offices. Likewise, OSHA will not impose a duty upon
employers to inspect the home offices of telecommuting
employees. However, because of workers’ compensation
concerns, discussed below, some employers choose to
require telecommuting employees to agree to periodic
employer inspections of their home work area.
Workers’ Compensation –
Work Related Injuries at Home
Florida law provides that an
employee who is injured while working from home will be
covered under workers’ compensation so long as the
injury arose out of or is related to the employment and
the injury occurred in the course of employment. Knowing
this, employers often express concern over possibly
fraudulent workers’ compensation claims being made for
home office injuries. Such claims are often difficult to
defend, since where there are no witnesses to the
accident, the employer is often left to rely solely upon
the employee’s version of how the accident occurred. As
a result, many employers opt to retain liability
insurance in addition to workers’ compensation insurance
so that where an employee is injured but the injury is
not covered under workers’ compensation, the employer
may still enjoy protection under its liability insurance
policy. The liability policy may also prove useful where
a third party is injured, such as a visitor to the
employee’s home office.
The Americans with
Disabilities Act (ADA) – Telecommuting as a “Reasonable
Accommodation”
Telecommuting may be an
attractive alternative for those employees who, because
of a disability, are unable to work in a traditional
office setting. Although telecommuting as a “reasonable
accommodation” is not specifically addressed in the ADA,
a number of courts have suggested that employers must
not automatically rule out telecommuting during the
interactive dialog between the employer and the disabled
employee to identify a reasonable accommodation. Where
an employer does offer a telecommuting option to its
employees, the employer cannot discriminate against
employees with disabilities when selecting who may
participate in the program.
Conclusion
Employers considering
implementing a telecommuting policy and/or program are
strongly advised to seek guidance from appropriate legal
counsel.
Sheri D. McWhorter, J.D.,
SPHR is President and Managing Shareholder of
WorkplaceLegalSolutions, Law Offices of Sheri D.
McWhorter, P.A., where she specializes in providing
employee relations counseling and pro-active employment
law solutions to business throughout the greater Tampa
Bay area.
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