Telecommuting is attractive to many workers, and it’s no surprise. What is a surprise is how many of them are suing their employers.
That’s right, suing. Over wage and hour issues. Over reimbursement of travel costs on days they do have to come in. Even over safety matters.
The lawsuits are neither small nor cheap. Farmers Insurance was hit with a $90 million jury verdict when its home-based adjusters took the company to court over overtime issues. IBM settled a similar case for $65 million.
The problem is that without direct on-site observation, employers simply don’t have a good handle on how many hours employees work, whether they’re following company policy, and even whether home offices are properly set up so that workers don’t lose confidential information or injure themselves using ergonomically unsound equipment.
The solution lies in thinking through all the issues and implementing a set of solid policies at the start of any telecommuting relationship. Here’s what the experts suggest:
Wage and Hour Requirements
Employers covered by Fair Labor Standards Act (FLSA) must observe its rules on minimum wage and overtime regardless of where employees perform their jobs, including home offices. That means employers must monitor hours of work by nonexempt employees and maintain records recording total hours worked each day and workweek. Employees should require telecommuters to keep time records, or use computer or telephone tracking systems that generate logs of hours worked.
Covered employers are required to pay employees for all hours worked, regardless of whether they have issued rules prohibiting work beyond a prescribed number of hours. Therefore, an agreement should include a provision advising the employee not to work more than a specified number of hours a week without prior approval.
Also, employers must ensure that telecommuting employees are taking their required meal and rest breaks and that they’re not in fact on the clock (in the form of work-related emails, texts, or phone calls) when they should be off it.
Telecommuting employees? How do you know they’re working? Join us April 5 for The Virtual Workforce: How to Empower Your Remote Employees and Improve Productivity. Click here for details.
Travel Expenses
One issue that has been litigated is pay for travel when telecommuters come in to the office. It’s important to establish a policy for this. The general rule is that once workers have done the first "principal activity" of the workday, they’re on the clock when they’re on the road. If the trip in is the first thing, however, it’s more likely a commute to work, and not reimbursable.
Equipment In the Home Office
Who owns the equipment a telecommuter uses at home? If it’s the company’s or the employee’s, be sure there’s a policy with permitted use and required care spelled out. Also, establish beforehand who will pay the costs of using the equipment. Finally, have a procedure in place for the disposition of company equipment if the worker leaves your employ.
OSHA and Safety Issues
OSHA generally will not hold companies responsible for the safety of their telecommuters’ home offices. However, since the employer’s workers’ compensation carrier is responsible for any job-related injuries to an employee whether at home or the workplace, the employer may want to publicize and exercise the right to inspect home offices for safety standards.
Employers should insist on (and offer to pay for) ergonomically sound office furniture, keyboards, and the like.
Proprietary Information
The same restrictions should apply at home as in the office. Be sure employees take appropriate measures to secure vital data, such as installing a proper firewall on their computers, and offer to pay for these measures.
FMLA
The availability of telecommuting may assist both the employee and employer by providing an alternative to taking a full leave under the Family and Medical Leave Act by allowing an employee to telecommute on an intermittent basis. Note: While the FMLA does not prohibit working at home during leave, the U.S. Department of Labor has said that any time spent working for the company cannot count against the employee’s federal allotment of 12 weeks of leave.
Virtual employees need virtual management. Join us April 5 for The Virtual Workforce: How to Empower Your Remote Employees and Improve Productivity. Click here for details.
ADA Interface
The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees’ disabilities, and courts have found that flexible work hours and telecommuting are often reasonable accommodations under certain circumstances.
However, you should have (and document) a strong case for this accommodation, or you risk bias charges from other employees who are not allowed to telecommute.
Be aware that rules for home workers can be very complex and state-specific, so you would be well-advised to consult with an attorney when implementing a telecommuting or work-at-home plan.
In tomorrow’s Advisor, more on ADA and telecommuting, plus a new webinar to teach you the new skills required of virtual managers.