Evaluate risks before employees telecomute

With all the fanfare about telecommuting -- having employees work from home via computer network, fax, and telephone -- many employers have overlooked a troublesome issue. Telecommuting moves the workplace from centralized offices to home offices where companies will find it harder to comply with labor and employment laws.

Labor issues at home. The Fair Labor Standards Act requires employers to pay nonexempt employees a premium rate for hours worked in excess of 40 hours in a work week. Telecommuters often work too many hours. Employers need to be sure that telecommuters work only their scheduled hours and that accurate records are kept of actual hours worked.

Employment discrimination lawsuits are common and expensive. Federal law prohibits employment discrimination based on race, gender, national origin, and religion. Employees over the age of 40 and those with physical and mental disabilities are also protected.

Companies with telecommuting programs need to evaluate the criteria for determining who may be a telecommuter to avoid charges of discrimination by protected class members. Make sure that a non-protected class does not receive preferential treatment to the detriment of a protected class.

The Americans with Disabilities Act requires employers to make "reasonable accommodations" for employees with physical or mental disabilities, including those debilitated by alcoholism or AIDS.

It is likely that courts will require companies with telecommuting programs to make a "reasonable accommodation" by offering telecommuting to employees with disabilities. It is not clear, however, the extent to which companies with telecommuting programs may be required to make costly alterations in the telecommuter's home office.

And what about...Employees injured in the "course and scope of employment" are eligible for workers' compensation benefits, no matter where the injury occurs. Workers' compensation laws cover a telecommuter's home-office injuries.

Because there is no clear separation between work and non-work environments for telecommuters, courts will be asked to answer a question such as, "Is a telecommuter who injures himself walking downstairs at home covered by workers' comp?"

After decades of decline, unions are becoming more aggressive. Undoubtedly, unions will try to organize telecommuting employees. Computer network technology will make organizing faster and easier than ever.

The National Labor Relations Act allows employees to engage in organizing activities, such as distributing literature, in the workplace. Since the telecommuting workplace is electronic, it is likely that courts will recognize the right of employees to use company computers and networks to communicate about union efforts. As a result, companies may prohibit all non-work communication on company equipment as a way to diminish the risk of union activity.

While telecommuting offers clear benefits, it also reduces the control employers have over the workplace. Employers must weigh the benefits and risks before launching such a program.

Legal Questions

Q: How can an employer minimize the workers' comp risk of its telecommuting program?

A: Because an employer has little control over a home office, hazards may exist in the telecommuter's workplace that would never be allowed in a traditional office. If the employee gets hurt at home while on the job, the employer is going to be responsible.

To reduce this increased risk, consider:

Q: What kind of accommodations might an employer have to make for a telecommuter under the Americans with Disabilities Act?

A: If enforcement agencies and the courts decide that the law applies to home offices as it does in conventional workplaces, then "reasonable accommodations" could include specially designed office equipment for employees who have to use wheel chairs.

An employer also might be required to adjust the height of light switches and reconfigure doors in the telecommuter's home office.

Q: Will Occupational Safety and Health Act (OSHA) rules apply to the home office of a telecommuter?

A: At this time, no. Despite earlier indications that OSHA was drafting regulations for the at-home offices of telecommuters, OSHA recently indicated that it no longer has such plans.

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