The Invisible Factors of Telecommuting

May 11, 2001
Telecommuting is becoming a fact of life for many these days. It is flexible,cutting costs and keeping staff happy because they can have better balance ofwork and personal lives. More and more employers are offering telecommuting as atype of flexible work arrangement to their staff. Telecommuters do not see theirmanagers, colleagues and clients.

    This "invisibility" makes the telecommuting environment verydifferent from that of a traditional office. How can managers supervise thetelecommuters? How can one ensure that their work is up to standard? Wouldtelecommuters feel isolated? Would any confidential commercial information beleaked? These are just some of the many things you may be concerned about.

Telecommuting contract
    Apart from resorting to management and technological solutions, a common wayof tackling these issues is by having the telecommuter and the manager enteringinto a telecommuting contract. If any party misbehaves, the other can sue on thecontract and claim for compensation in respect of loss and damage.

    By spelling out the rights and obligations of each party, the telecommutingcontract would have psychological implications too -- that it is a tangibledocument evidencing the commitment of both parties to make telecommuting amutually beneficial success. Here is a list of the main terms to be included inthe contract.

Frequency and duration of telecommuting
    To facilitate planning and organizing resources, it is practical for thetelecommuter and the manager to agree as to how often and how long thetelecommuter will telecommute. You may include details such as specific days ina week, certain time slots in a telecommuting day and whether the telecommutingschedule might change if the agreed telecommuting day falls on a public holiday.

    Given that our business environment is becoming more unpredictable, you mayconsider having some flexibility by inserting a clause allowing each party toreview or even amend the telecommuting schedule if necessary.

Communication frequency and protocol
    The telecommuter and the manager do not see each other physically. Thetelecommuter might need guidance or even approval in handling certainsituations. The manager would want to effectively manage the telecommuter --even remotely. Communication becomes ever important. It is recommended thatthere are provisions in the contract regarding the minimum frequency that thetelecommuter and the manager would communicate -- reporting progress, givingdirection or just keep each other posted of the on-goings.

    It is also practical to state in the contract communication protocol whom totalk to and on what issue. While the usual case is for the telecommuter to talkto his/her immediate supervisor in many instances, how about if the supervisoris not available and the telecommuter needs to resolve something urgently? The"reporting chain" should be clearly stated in the contract. If thetelecommuter cannot get hold of the supervisor, the contractual provisionsshould indicate to whom s/he can talk to.

Performance measures
    One of the most-cited concerns about telecommuting is whether thetelecommuters would be able to do a good job -- given that they are working awayfrom colleagues and supervisors. The common perception is that when the managercannot see telecommuters, there is no way to tell whether they are workingproperly or not! It is therefore important for the telecommuter and the managerto agree on performance expectations and evaluation criteria.

    It would be practical to focus on tangible performance "outcomes"-- examples being a research report, project brief or strategic plan. You mayalso want to include specific criteria such as attaining client or projectobjectives, relevant content, good analysis, clear expression, professionalpresentation, meeting deadlines, etc.

    With the current business environment constantly changing, the work of thetelecommuters might also change rapidly. It might be flexible to state in thecontract that both parties agree to on-going review of the performance measuresand evaluation criteria.

Technologies, equipment and resources
    Technology is making telecommuting possible -- email, fax, wireless phone,digital palm-top, etc. Any inadequacy, malfunctioning or even breakdown of thetechnologies would adversely affect the effectiveness and efficiency oftelecommuting. Organizations are now increasingly aware of the importance ofinvesting more in technologies to support their telecommuters.

    The manager should therefore agree on behalf of the organization that thetelecommuter could have adequate, appropriate and effective technologies andother related equipment and resources necessary to telecommute efficiently. Inreturn, the telecommuter should acknowledge that such technologies, equipmentand resources are and will remain the property of the organization and that s/hewould make the best endeavors to use and maintain them with due care.

    Both parties should also co-operate to run system maintenance and securitychecks from time to time. They should also agree that the manager would arrangefor reimbursement of expenses reasonably incurred by the telecommuter in thecourse of his/her telecommuting.

    Training programs for both the telecommuter and the manager would equip themwith the knowledge, skills and management strategies in coping with the newchallenges and taking advantage of the new opportunities from telecommuting. Itis important that both parties are committed to on-going training to make thetelecommuting a success. The telecommuting contract should include stipulationsthat each party is obliged to attend all corporate training programs as requiredfrom time to time.

Intellectual property and confidentiality
    Information becomes the key currency in today's digitalized economy. Nobodyever wants to imagine the consequences of leaking confidential commercialintelligence -- such as product design or marketing plans -- to unauthorizedparties which could be existing or potential competitors.

    A telecommuting contract should provide that the telecommuter keeps allwork-related information confidential no matter where s/he is working. Thetelecommuter should also acknowledge that all work that s/he produces at thetelecommuting site remains the intellectual property of his/her employer, andthat any use, reproduction or exploitation of the same requires his/heremployer's consent.

Taken as constructive dismissal?
    Constructive dismissal arises when an employer's actions are such that theyhave, in effect, terminated an employee. Examples include cases where anemployer has significantly changed the duties or remuneration of an employee. Ifan employer suddenly assigns an office-based employee to work from home, theemployee may be able to argue that s/he has been constructively dismissed--  butthis may not be the employer's intention!

    Some employers try to get around this by arguing that telecommuting is a termof employment and that is what the employee wants when they negotiate the deal.This is the reverse of the above situation -- because in this case the employeemay argue that s/he is constructively dismissed if the employer asks his/her toreturn to the office (especially when telecommuting is not working well!).

    In order to avoid the possibility of a constructive dismissal claim, it ispractical to include provisions in the contract that the telecommuter volunteersto telecommute and reserves the right to return to the office after havingconsulted with the manager. For the protection of the employer's interests, thecontract should state that the manager reserves the right to have thetelecommuter return to the office if the telecommuting arrangement is notsuccessful.

Occupational health and safety
    Generally employers are responsible for providing a safe and healthy workingenvironment. It is unlikely that employers would have control over a homeenvironment where the telecommuter will work. If the telecommuter sufferseyestrain because of dim lighting or back pain while sitting in an ill-suitedchair, should the employer be held liable?

    International practices differ. The Occupational Safety and HealthAdministration (OSHA) of the US Department of Labor issued a compliancedirective in February 2000 that OSHA would not undertake health and safetychecks at home workplaces and would not hold employers liable for employees'home offices' health and safety matters.

    The rationale is that the Administration respects individuals' privacy andexpects employers to do the same to their telecommuters. However, multinationalswith overseas offices having telecommuting arrangements should be aware thatother countries might have different policies. Countries like the UK andAustralia still have the practices of employers undertaking regular health andsafety checks at the employees' home workplaces.

    In any case -- whether the employers are liable for occupational risks attelecommuters' home offices or not -- it is advisable that the telecommutingcontract has clauses stating that the telecommuter is under a duty to take allpractical steps to make the home working environment safe and healthy and not todo anything that would cause or lead to direct, indirect or potential harm toanyone.

Who should be involved?
    Preparing a telecommuting contract should not just involve the lawyers. Theprovisions will affect not just the telecommuter and the manager but also theorganization as a whole. The decision as to which provisions to be included orhow the provisions should be phrased often depends on managerial ortechnological considerations.

    Apart from telecommuters, managers and lawyers, relevant business units suchas the human resources and information systems departments should also getinvolved in the drafting, negotiating and finalization of the contract.

The information contained here is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.