Establishing Telework Parameters
Telework, also referred to as telecommuting, is an arrangement in which employees are authorized to work in locations outside the normal workplace, usually with an electronic connection that permits access to job-related information. The practice has become far more common as technological advances have increased the feasibility and convenience of off-site work. Last year, Congress passed legislation establishing telework protocols for all federal agencies, and the Equal Employment Opportunity Commission (EEOC) has long recognized telework as a potential method of accommodating qualified employees with disabilities under the Americans with Disabilities Act (ADA).
Despite the growing prevalence of telework arrangements, many employers underestimate or ignore the substantial risks associated with them. The most significant of these risks, from an employment law perspective, are ADA accommodation issues, wage and hour liability associated with time-keeping problems, and threats to the confidentiality of employer data.
ADA ACCOMMODATION ISSUES – Losing Control Over the “Who, How and When”
When employees seeking work-from-home arrangements justify such requests by claiming a need for a reasonable accommodation of an alleged disability under the ADA, many employers find that they no longer have control over the “who, how and when” of granting or denying telework arrangements. However, telework is not a mandatory accommodation for disabled employees who request it.
The EEOC has called for a case-by-case analysis to determine whether particular jobs can be performed off-site without imposing undue hardship on employers. Perhaps the two most useful guideposts for resolving accommodation requests (including telework requests) are consulting the relevant job description and reviewing past practice.
Employers need not change essential job functions in order to accommodate a disabled employee. But a job function that does not appear in the relevant job description is not likely to be deemed “essential.” Thus, if an employer believes telework would interfere with an essential job function — the need to interact with other team members or customers, or to be supervised in person, for example — such job functions must be clearly set forth in the relevant job description. Phrasing such as “regular in-person interaction with customers (or team members) is mandatory” should be added to job descriptions where appropriate.
In addition, employers should ensure that their past practices fairly support any decision to deny an accommodation request. Perhaps no other factor trips up more employers in litigation over ADA accommodation denials than failing to conform to past practice. If six out of six comparable employees have been permitted to work from home in the past two years, the employer will be hard-pressed to deny the same arrangement to the seventh — especially if the employee is seeking accommodation of a disability. Employers must ensure that decisions regarding telework arrangements for similar employees are made consistently.
WAGE AND HOUR LIABILITY – Replacing the Time Clock With the Honor System?
Employees classified as non-exempt under the federal Fair Labor Standards Act (FLSA) are generally entitled to overtime pay for all hours exceeding forty in a given workweek. Most employers are aware of this requirement and well-equipped to record employee time accurately in the workplace. When employees work from home, however, employer supervision of work hours is often far more difficult. Employers must adjust to this reality.
Employers should consider using alternative mechanisms to record time. For example, employees working from home may be instructed that they are not to work until registering on a company computer network or otherwise “clocking in” remotely. It is also advisable to obtain weekly signed timesheets from employees working remotely, so as to develop a record establishing FLSA compliance.
In addition, any evidence of unrecorded work beyond regular hours — e.g., after-hours email messages or voicemails — should be investigated thoroughly. Appropriate steps should be taken to respond to any cases of unrecorded work. While it is not permissible to deny payment for unauthorized work beyond the regular work hours, employees may be disciplined for engaging in such work, including, in appropriate cases, revoking the telework arrangement.
CONFIDENTIALITY AND TRADE SECRETS – Out of Sight But Not Out of Mind
With the increase of telecommuting, employers have seen a substantial increase in employee theft of electronic data, trade secrets, customer lists and contacts, and other proprietary information. Employees working from home are more likely than other employees to download or copy company data onto non-company media and to retain and use such data after the employment relationship terminates.
The first important step to minimizing the risk of data theft by teleworkers is to establish and enforce effective technology and computer use policies, ideally with specific rules applicable to off-site workers. For example, it should be clear whether employees are permitted to work from their own computers or whether company hardware should be used for all company business. Likewise, an effective policy should spell out rules for downloading and copying company data, and periodic compliance checks or audits should be performed.
Employers should also consider requiring nondisclosure agreements with any employees who may have access to sensitive company data, particularly if such access is off-site. Such agreements not only provide a legal basis for taking action in the event of a breach but also have a deterrent effect and help establish a clear understanding as to each party’s rights in the event the employment relationship is terminated.