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Time to Tackle Telecommuting

Telecommuting raises enough unique issues under the ADA and the FLSA that inattentive employers that ignore these issues risk getting burned.

June 12, 2014
Related Topics: Legal Compliance, Miscellaneous Legal Issues, Legal
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Last year, Yahoo CEO Marissa Mayer caused an uproar when she banned telecommuting at her company. Proponents of telecommuting and work-life balance argued that a working mom such as Mayer should be more accommodating to those who need to work from home.

Not every job needs to be tethered to an office or physical workplace. Employers and employees seem to agree. Estimates show that as many as 50 million Americans work remotely at least part of the time. Yet, two federal laws can come into play when dealing with telecommuting policies in your workplace: the Americans with Disabilities Act and the Fair Labor Standards Act.

In April, one federal court of appeals, which until then had balked at requiring employers to offer telecommuting as a reasonable accommodation to employees with disabilities ultimately relented. The court concluded that an employer must at least consider a work-from-home arrangement for those employees whose jobs don’t necessitate them being in the workplace. Technological advances sat at the core of that court’s opinion:

“When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception in most cases, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work at the workplace and not from home, consider the following three steps:

1. Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.

2. Document the cost of establishing and monitoring an effective telecommuting program.

3. If an employee with a disability requests telecommuting as an accommodation, engage in a dialogue with that worker to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

Because telecommuters work outside of the workplace and often during odd hours, they present special problems for accurately tracking the amount of time spent working under the FLSA.

If your business is going to employ telecommuters, you should take appropriate measures — in a telecommuting policy or contract — to control and track the time spent working:

1. Employers should clearly communicate to the employee the number of expected work hours per each week.

2. Telecommuting employees must accurately track all time spent working. Whatever the system used (pen-and-paper time sheets, Excel spreadsheets, time-keeping software, electronic logins or other “punches”), employees must understand that they will only be paid for the amount of time reported.

3. Because telecommuting employees are working without direct supervision, all submitted work should be reviewed by a manager or supervisor to ensure that the work performed correlates to the amount of time reported. An employer cannot dock time or refuse to pay an employee for time spent working. However, an employer can take away an employee’s ability to telecommute (or discipline a worker) if the employee proves to be irresponsible or abuses the telecommuting privilege.

While telecommuting may not be “the next big thing” in litigation, it raises enough unique issues under the ADA and the FLSA that inattentive employers that ignore these issues risk getting burned. Or, employers can heed Mayer’s advice and ban telecommuting altogether.

By eliminating telecommuting, you risk pushing away a segment of the workforce that needs flexibility in their lives and schedules, which in turn could cause you to lose valuable, productive workers. To me, the benefits outweigh the risks, provided that you keep these legal limitations in mind.

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