Telecommuting: Balancing the Risks Against the Rewards
April 22, 2013
As e-mail and the Internet became staples of daily life, both employers and employees began to recognize the benefits of working in one’s home with the aid of a telephone and computer connections – an arrangement commonly referred to as “telecommuting” or, alternatively, the “virtual office.” Telecommuting is, of course, attractive to employees because of its many conveniences, but it has more than its share of benefits for employers as well. It can, among other things, reduce office expenses, increase morale, and give employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment.
While telecommuting may no longer be considered a novel concept, Yahoo’s recent ban on all work-from-home arrangements, including those that had previously been granted, put telecommuting back in the national spotlight. The significant media attention that has been given to Yahoo’s ban may make it an appropriate time to review some of the various legal issues involved in deciding whether or not telecommuting arrangements should be allowed.
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. The unique nature of telecommuting, however, makes legal compliance an often challenging enterprise. 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.
For example, telecommuting makes it more difficult for employers to ensure compliance with applicable wage and hour laws, such as the Fair Labor Standards Act (“FLSA”) and comparable state statutes. This is particularly true where the employees do not fall within one of the several exemptions to the FLSA’s minimum wage and overtime requirements. Employers must make sure to develop appropriate procedures for non-exempt telecommuting employees to report their hours worked each week, and must keep adequate records to demonstrate that those employees were paid appropriate straight time and overtime compensation.
Additionally, decisions concerning telecommuting privileges may be subject to scrutiny under the anti-discrimination laws. Employers should make sure that their telecommuting policies are applied to their employees in a non-discriminatory manner, so that employees cannot allege that they were denied telecommuting privileges because of their sex, age, race, or some other protected category.
Employers should also be aware of reasonable accommodation issues that may arise for employees who become unable to work in the office due to a disability, but are able to work at home. The Equal Employment Opportunity Commission has opined that telecommuting is, in fact, a reasonable accommodation under the Americans with Disabilities Act ("ADA"), as long as the employee can perform the essential functions of the job and the accommodation would not cause the employer undue hardship. Consequently, a blanket rule against all telecommuting arrangements -- without exceptions to comply with the employer's obligations under the ADA and state disability discrimination statutes -- may be subject to scrutiny.
As noted above, there are many factors that employers must consider in determining whether to allow telecommuting, under what circumstances telecommuting will be permitted, and what positions are appropriate for telecommuting arrangements. This post only highlights some of the more common issues and challenges involved with telecommuting arrangements. Employers are advised to become familiar with all of the potential risks and work with counsel when developing and applying telecommuting policies.
