Telecommuting and the Law
Telecommuting has grown over the last decade with millions of employees now working from home on a part or full-time basis. While many companies and employees enjoy the advantages of these arrangements some disturbing legal trends are emerging. A growing number of claims are being made by telecommuters alleging violations of the Fair Labor Standards Act (“FLSA”), OSHA, and ADA.
The FLSA claims primarily allege underpayment of hours actually worked. As employers are unable to physically observe employees during the work day it is important to establish some mechanism to track the hours actually worked by telecommuting employees. Where possible companies should consider computer or telephone tracking systems that show log in and log out times. Employees must still be instructed, however, to log out when not working as employers must pay for any time that it knows or has reason to believe that work is being performed. Courts have made it clear that it is management’s duty to exercise control and not permit employees to work beyond those the employer has authorized. Publishing a rule is not enough. Managers must make every effort to enforce the rule, including issuing discipline, or it may end up paying for time not specifically authorized.
Employers should also be aware that while OSHA’s current policy states that it will not conduct inspections of home offices, nor does it expect employers to do so, employer’s are required to keep records of work-related injuries and illnesses that occur in home offices. Therefore, employers should take steps to minimize home office hazards, specify the specific area constituting the home office, and official work hours. Doing so may minimize disputes about whether injuries occurring at home are work related and covered by the employer’s workers’ compensation policy.
Finally, employers permitting telecommuting may have a difficult time denying the right employees seeking a home office arrangement as a reasonable accommodation under the ADA. While such an accommodation may work well for both parties there may be instances when work at the central office is an essential job function. Where this is the case, employers should exercise caution and document its reasons for requiring an employee’s presence at the central office. While working from home has benefits for employers and employees alike, organizations must remain cognizant of the issues raised by these arrangements in order to avoid litigation.
