Jul 01, 2013

Should Your Employees Telecommute?

By: Paul Ebeltoft

10 Things Your Company Should Consider
(Well, three this time with more to follow

Despite its obvious attractions, telecommuting presents employers with a host of potential legal pitfalls. For the most part, traditional employment laws are no less applicable to the “virtual office” than to the traditional office. In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.

Be wary of promises that a simple telecommuting policy supported by a simple side-agreement with your telecommuting employees will cover the liability bases. Successfully developing and implementing a compliant and optimally protective policy and employment contract is a significant project for HR professionals and their legal advisers, one which should not be undertaken without complete company buy-in to the concept of allowing or limiting work-from-home options.

This is the first in a series of three articles that will describe ten points to consider when your boss asks HR to help chart a course for your company.

1. Who Owns What?

Are your telecommuting employees using company tech-hardware or their own computers to work from home? What happens if these devices and equipment are lost or damaged? Who is responsible for replacing a company computer that the family dog destroyed or a personal computer used for business that the same dog chewed.

If your company provides the property, how do you get it back upon termination? Even the most carefully worded contract will not make a claim and delivery action to wrest a computer from a disgruntled employee less traumatic for HR. Carefully worded contracts will provide some cover for your company, however, and lower the legal hurdles.

Whether your company provides the data device or not, how do you assure preservation of the data on that equipment during or at the end of employment? If it is not your equipment, who has rights to what data? Once again, clearly worded and comprehensive policies coupled to telecommuting employment contracts will save a lot of grief later.

2. Data Security

Your company probably already has a data security policy. HR must assure that your telecommuters operate under a policy-contract regimen that incorporates added security terms unique to telecommuting. For example, may your telecommuting employees work from a wireless Internet connection accessible by others? How secure is their home office environment? How do you police compliance with company policy restricting dangerous downloads or risky software on a telecommuter’s home computer?

Your IT department will tell you that ensuring access to company data appropriately and securely, either from a secure connection or through a VPN, is neither flawless nor inexpensive. Depending on your business and the amount of confidential and proprietary information accessible to certain employees, data security alone may make drive the decision to allow or restrict telecommuting.

3. WSI.

We all know what happens when an employee is injured “on the clock.” Whether your WSI account will be charged if your telecommuter slips and injures herself on work-related papers at home is much less clear. How about if she develops a fatal blood clot after working six hours on her couch? What if she trips over her family dog moving from her home office to her kitchen? Worse yet, what if your employee is assaulted by a third-party while working at home? “It won’t happen to us,” you say. Sadly, all examples formed the basis of workers’ compensation claims brought by telecommuting employees. Deciding when an employee is working and when not, may require contract-by-contract consideration.

Good employers provide a safe working environment for their employees regardless of whether their employees work from home or in the traditional office-setting. To limit safety issues, some employers make an effort to delineate telecommuting employees’ work time and work environment by, for example, requiring employees to designate a specific area at home to serve as an office and to take lunch and rest breaks at designated times. How is this monitored? How do such rules affect the benefit of working at home? Employers who perform a site check of home offices to ensure that there are no potential hazards (such as overloaded extension cords or tripping hazards, to name a few) and to ensure that the employee’s desk and seating arrangement is appropriately designed, find that home office environments change, literally overnight, without company input. Documentation of acceptable vs. unacceptable home work environments and practices will require all of HR’s skill, experience and patience.

4-6. Look for the Next Three Points to Consider in
Your Next SAHRA Newsletter

Our interest in serving you

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at pebeltoft@eskgb.com We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the July, 2013 Southwest Area Human Resource Association newsletter.