From the Home Office: Employer Considerations for Telecommuters

April 28, 2017

Working from home has become an increasingly common practice for many employees in a variety of professional settings. Telecommuting increased from 19% of the U.S. workforce in 2003 to 24% in 2015, according to the U.S. Bureau of Labor Statistics (BLS). Employees in management, business, financial operations, and professional occupations worked from home in 2015 at a rate of approximately 36%. Further, research from recent years has shown that more Gen-Xers and Baby Boomers than Millennials prefer to work from home. So, with the recent upswing in telecommuting and the anticipated growth of working from home, what are the legal issues that employers should be on the lookout for?

To permit or not to permit telecommuting

Setting aside the issue of whether telecommuting can ever be a required reasonable accommodation for a disability, permitting employees to telecommute can create significant employment concerns. For example, it’s more difficult to monitor employees who are working from home. As a result, nonexempt employees who telecommute can more easily create overtime obligations for your company.

Moreover, if you allow some employees, but not others, to work at home, you may face disparate treatment discrimination claims. And injuries to employees who are working from home with your consent can raise interesting worker’s compensation questions.

So, your first consideration should be whether to permit telecommuting. If the answer is yes, then you should take appropriate actions to minimize the risks of liability.

Unpaid overtime

Remote work performed by employees often results in overtime liability for employers. You should carefully monitor your nonexempt employees’ telecommuting time. Employees should be required to notify a supervisor or clock in electronically when they begin their workday and notify a supervisor or clock out at the conclusion of their workday. Employees should also be required to keep track during the workday of all breaks longer than 30 minutes, including lunch breaks. If you have an overtime policy that requires a supervisor or manager to preapprove overtime, you should inform your telecommuting employees that the rule applies when they work from home.

Another form of working from home is compensable work performed by an employee before the start of her workday or after she has completed her workday (often referred to as “off-the-clock” work). In our electronic world, employees may read and respond to work e-mails, including messages from supervisors, clients, or customers, while they’re technically off the clock. Similarly, employees may make or receive business-related telephone calls during their off hours.

Assuming off-the-clock work isn’t de minimis (insignificant or performed infrequently), it may be compensable. And if it results in the employee working more than 40 hours in a workweek, you must pay her time and a half for her off-the-clock hours.

You should have a written policy that prohibits off-the-clock work, including reading and responding to work-related e-mails and telephone calls without approval. When you become aware that an employee has violated the rule, you should enforce it with counseling or, if necessary, discipline. You don’t want to be in a position where you’re aware that your nonexempt employees are working off the clock, you are accepting that work, and you are not paying them for that off-the-clock work.

Privacy and confidentiality: cell phones

Many employees have work e-mail accounts linked to their phones, which is one of the most basic, and arguably the most widespread, forms of telecommuting. However, this simple practice might open your company to hacking or data breaches if employees are lax with the security of their phones.

First, a simple privacy concern involves the accessibility of employees’ cell phones. If an employee leaves his phone unattended or his phone is stolen, third parties may gain access to your corporate or client information. You should impose certain restrictions and policies to ensure that your employees take care to guard the information on their phones:

  • Require a password to access the content of phones.
  • Turn off “previews” of incoming e-mails or texts on the phone. That limits what someone can view even when the phone is password-protected.
  • Enable remote resetting or “wiping” of data if a phone is lost or stolen.

Second, educate employees on possible hacking threats. For example, public charging ports at airports or coffee shops can be an unsuspecting host for viruses that can either damage information on a cell phone or steal the user’s data, including private and otherwise secure information. Many people don’t consider the security risks when they connect to a public charging port because they’re either unaware of the danger or don’t suspect a threat. A recent experiment found that more than 80% of people who used a public charging port at a conference didn’t ask about the port’s security before connecting their phones. Simply educating your employees could substantially limit the risks of a data breach.

Privacy and confidentiality: Wi-Fi 

Working remotely can also create risks for employees who use otherwise secured computers. Public or unsecured Wi-Fi hotspots open computer users up to a substantial risk of both their personal and corporate information being hacked. Hackers can intercept information that a user sends from a computer over her employer’s network. That means the hacker sees and receives all of her information, including passwords, user names, and other information, which can allow him access to even more restricted or confidential information.

As with cell phones, you should take care to educate employees on the security risks of unsecured Internet access and impose strict policies for the security of company information, including:

  • Prohibit employees from telecommuting while they’re connected to unprotected or public Wi-Fi.
  • Offer virtual private network (VPN) software to secure connections and protect information.
  • Provide cellular hotspots for employees using their computers remotely. Although the additional cellular data use may impose a higher cost for your company, a secured cellular hotspot offers a password-protected connection for employees anywhere with cellular reception.

Worker’s comp claims

Working remotely also raises some interesting worker’s comp concerns for employers. Under Wisconsin worker’s comp law, an employer is liable when an employee sustains an injury in the course of performing services “growing out of and incidental to his or her employment.” If one of your employees is injured while he’s working remotely, you could be held liable under that provision.

What if an employee is supposed to be working remotely but is injured while he’s performing some task unrelated to his job? How can you be certain that the employee was actually performing services incidental to his position when he was injured?

You can limit possible fraudulent or unsubstantiated worker’s comp claims by creating a telecommuting policy that addresses which employees are permitted to work remotely, when they may work remotely, and where they are permitted to work remotely. For example:

  • Require prior authorization before an employee may work remotely. That way, you can restrict telecommuting to employees who you believe can work without much supervision.
  • Require that any employees who work remotely have a designated remote office or desk, and provide training and information about workstation setup and ergonomics.
  • Require strict time reporting, even for salaried employees. That way, you have a record of when the employee is working or taking a break, which may help if a telecommuting employee is injured remotely and there’s a dispute over whether the injury took place during working time or a break.

Bottom line

Telecommuting or working remotely can have several benefits for both employees and employers. Employees may appreciate the freedom to work around their busy schedules, and employers may benefit from happier employees, which will result in lower employee turnover. However, as we’ve noted in this article, the benefits of telecommuting come with certain risks.

If you permit your employees to work remotely, you should create and implement policies that explain your rules and expectations of telecommuters. Education and communication can help you stave off possible future legal concerns.

This article, slightly modified to note recent updates, was featured in the April 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "From the Home Office: Employer Considerations for Telecommuters," contact Danielle E. Baudhuin at dbaudhuin@axley.com or 608.283.6712.