|January 2022 Volume 20, Number 1|
How to Avoid the Legal Pitfalls of Telecommuting
Are you an employer who started letting employees work from home during the COVID–19 pandemic?
Or maybe telecommuting has been part of your work environment even before the pandemic. In any case, here are some things to be aware of to be sure you’re not opening yourself to litigation.
The company policy should draw attention to the fact that telecommuters who use their home computer must realize that an employer has the right to monitor or inspect an employee’s computer — even if the employee is using a personal computer. The agreement should include a nondisclosure agreement requiring employees to promise not to share company information while allowing the employer to retrieve files at will.
To ensure that hackers can’t access company information from an employee’s computer, employees should operate their computer from a secure server or a virtual private network. As an extra layer of protection, employees should also use encryption, passwords and network firewalls.
The telecommuting agreement should list the employee’s hours and require them to keep meticulous records or use an electronic tracking system. In situations where workhours fluctuate based on business needs, there should be an agreement specifying how many hours the employee will be paid each week — regardless of the hours they work.
The Occupational Safety and Health Act (OSHA) mandates that employers maintain a safe workplace for employees by preventing foreseeable hazards — even when employee works from home. While an employer generally does not have the right to go into an employee’s home, an employer can make it a part of the telecommuting agreement that to ensure compliance with OSHA standards inspection of the employee’s home may be permitted.
Most courts consider home workplace locations an extension of the office. That means that an employer could be held liable if an employee is injured while working at home. Employers are encouraged to create a specific policy regarding work–related injuries that may occur in an employee’s home. The policy or agreement should designate a specific area of the employee’s house where work will be performed — preferably apart from the rest of the house to ensure that injuries occur only in the designated areas.
Your policy should indicate which group or groups are eligible to work from home, and under what circumstances. Make sure that your policy doesn’t apply to groups that could be identified in a manner suggesting discriminatory intent, however, such as only women or only young employees.
Class Action Considerations
Ideally, each telecommuting employee should have a separate, individualized agreement. Individualized agreements protect employers from class action lawsuits. For instance, in a situation where an employee brings a suit alleging the employer failed to properly record work hours, if all employees signed the same agreement, the suit could be applied to all non–exempt telecommuting employees.
Zoning and Taxes
Some local ordinances restrict the ability of individuals to conduct business in their homes, and in some cases, permit local governments to levy taxes. The telecommuting agreement should stress that it is the employee’s responsibility to ensure compliance with local zoning and regulations.