If you haven’t yet, I encourage you to read the first part of a discussion with employment law scholar and founder of LawMemo.com, Ross Runkel, about some of the most frequently-cited legal barriers some employers anticipate before implementing telecommuting programs.
In that post, there is a discussion about the initial motivation behind having such a chat in the first place as well as some clear, insightful answers from Ross Runkel about the true nature of these perceived barriers. In general, we come to the conclusion that employers should be far more worried about organization-specific issues such as trust long before they ponder the fairly routine legal process behind allowing telecommuting.
The first part of our discussion contains some practical advice from Ross Runkel about wage and hour concerns under the Fair Labor Standards Act, provides some commentary about privacy issues, and talks about how employee agreements should be essentially the same for on-site and off-site workers. In essence, as the interview reveals, there are few barriers to telecommuting from a legal perspective but again, none of these barriers matter if you don’t trust your employees enough in the first place.
The second and final half of our discussion today discusses OSHA (for non-Americans, this involves standards set forth by the Occupational Safety and Health Administration), inspections for telecommuting employees (and the privacy and other issues that topic invokes) as well as zoning laws, how companies deal with the shift, and most importantly, what first steps a company should take when implementing a telecommuting program…. And guess what? Those first steps are not necessarily legal—back we go again to the trust and workplace culture topics…
Select portions the interview transcript:
N. - Employers worry about OSHA standards and how these will change or be harder to keep up with in a remote site. What do employers have to worry about and what about employees as well?
R.R.- The reason OSHA does not bother to inspect homes where people are telecommuting is the nature of the work. Typically a person is working with a computer, a telephone—typically they’re not working with dangerous equipment, toxic chemicals, so the reason for looking there just doesn’t exist.
When employees are in a different situation and are assembling dangerous materials, using dangerous chemicals, that sort of thing, I’m sure OSHA would be very interested in inspecting, but as it stands, there is no reason for them to mandate inspections. They’re just not necessary.
What we need to realize is that once you move off-site, you’re still working for the same employer; the same standards need to be applied so if ergonomics, certain kinds of chairs, certain elements of the working environment are present on-site, they should be off-site as well.
N. - Another persistent question about legal barriers to telecommuting I’ve heard relates to zoning laws. I know this is not your specialty or area of focus, but do you think these are valid concerns?
R.R. - I’ve heard the same thing and what’s happened is—and zoning laws are peculiarly local—the city, the county—they’re the ones in charge of the zoning laws and so there are hundreds of thousands of different zoning laws across the country. But some cities and counties are requiring in their zoning laws that you have to have a permit in order to have a home office, which goes way back to when you had to have a permit if that was your only office—if you’re a hair stylist, an accountant, or lawyer and you’re working out of your home—most cities already require that you have a permit. They’re just extending that to the individual employee.
Typically a zoning law would apply to the location where the home is, so it would be as between the city and the company and the employee—I think that would be an arrangement between the employee and city. The employer might want to finance the permit, pay for it, help with it, but I think the actual responsibility is for the person that owns the land.
But if you want your employees to telecommute, you cooperate with these things. It’s a small matter, a small expense…
N- What are the realistic first steps a company should take from a legal standpoint? Is it difficult legally to implement telework?
R.R. - No, it’s difficult at all and there are two lines you have to go down. One is the legal end, typically that can be handled by simply imposing the same rules for the home as at the factory. The other end is personnel policy and trust.
Of course, there are also some serious questions about proprietary information, customer lists, trade secrets, confidentiality,
The concern will be everything from the employee has the information on a laptop, what if they leave it at the coffeeshop? And we’ve seen that happen—people have stolen laptops with credit card information, top secret government information, all sorts of things. Well, of course ,that can happen whether the employee is working from home or not.
If a person is home working 8 hours a day with their computer open, there are passwords that are used to gain access to the company computer, many come in straight on a connection and there could be someone who sits down at the open computer, gets the passwords, etc. Those are the security risks.
Quite simply, employers should have confidentiality agreements that apply for both on-site and off-site workers.
Then the next step is identifying whether there are peculiar problems with the offsite location? The employee needs to agree not to leave the computer open, needs to agree to frequently change the password, those kind of things. And another thing an employer can do is change the security arrangement so that the on-site computer can access what thye need to know but cannot access other information.
N. - What about the Americans with Disabilities Act and the idea that someone might have the right to telecommute?
R.R. - There are some employees who because of their individual needs are going to much more productive if they can work from home. People who have some disability, childcare or eldercare responsibilities, or any of a number of other reasons why it’s difficult for them to drive in, stay for 8 or 9 hours and then drive back. I mean, if I had a third-grader who I knew was at school until 2:30, I would want to be home then and I think I would be more productive that way—and save a little gas.
There are cases where people have claimed they had a right to telecommute because of their disability. Typically the way that goes down, you look at how much being present at the site is an essential function of the job. Also, there’s the question of an employer who’s never allowed telecommuting and they’re being asked to change that policy.
I think an employer can succeed simply by saying that being supervised is an essential function of the job and that’s the only way the job would work. However, if I start telling some employees they can telecommute but tell a disabled employee no, then certainly this is a problem.
N.- Aside from trust issues and the others we’ve identified, what are the very first things employers should do?
R.R. - The first thing is to make sure that whatever employment policies exist on site are the same off-site, especially in terms of hours and wages and who gets to do it so you don’t have a situation where, for example, the boys can do it and the girls can’t. You should have a uniform policy, something you should have anyway.
Make sure worker’s comp agency knows I’m doing this, make sure there’s some different way to record hours, which for me, I use a log where people log in with pencil and paper and that solution works.
Trust is key. If you don’t trust your employees, maybe you should visit your whole business plan.
Trust they’re not going to have a dangerous office, that they’re going to do their work, put in their time, take breaks, report if they’re injured on the job—all things they would have to if they were on-site. Otherwise, you’d have to send out a supervisor, which kind of defeats the purpose of the whole thing in the first place.
I would also notify my insurance company who covers me for liability and make it clear or not if liability is covered at the home office or not.
I would say the legal barriers to telecommuting are extraordinarily small. The personnel policy questions are important. It’s important to have a clear understanding about what the employee will be doing, where she’ll be doing it, when she’ll be doing it—it’s important to be sure the relevant insurance companies are brought in so we’re sure the worker’s comp is going to be covered.
N. - Any closing thoughts—things you might want resistant employers to consider about the topics we’ve addressed?
R.R. - If an employer’s bringing out a new product they’ll focus all of their energy on brining out a new product, it’s the same thing with telecommuting. If they want it to happen, they’ll do whatever it takes to make it happen. If they don’t want to make it happen, they’ll think of all sorts of roadblocks and it won’t happen.
End of transcript.
I would like to thank Ross Runkel for taking time to speak about this issue and to provide this kind of useful information to the public. If you are a legal buff looking for more information on employment law and other legal issues, including court rulings, I encourage you to visit LawMemo.com. You will also be able to find Ross Runkel’s full biography in addition to the wealth of other materials for the legally-minded and curious alike.
Questions, comments, reactions?