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Even organizations that are just pilot testing telework on a small scale should review the
workplace, legal, and personnel issues listed below to determine if they need to be addressed
or not. Organizations that are creating a telework policy will probably want to address most
of these issues in the policy.
Accommodating Disabilities
Company-owned Property
Confidentiality & Trade Secrets
Discrimination
Expenses
Injuries in the Home Office
Liability
Privacy
Records Management
Software Licensing
Tax Issues
Unions
Wage & Hour Compliance
Zoning
Accommodating Disabilities: Teleworking may be considered a reasonable
accommodation for employees who have a disability under the Americans with Disabilities Act (ADA), however it is
not required if it would eliminate an essential job function of the employee's position or create an undue
hardship. When developing requirements of the telework program ensure that there is no discrimination
against an individual due to their disability or perceived disability. Note that you should not inform other
employees that a worker has been selected for telework "because" of a disability, as that is viewed as informing
others that an employee has a disability, which is not allowed under ADA rules, even through it may be a factor
in the decision.
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Company-owned Property: Liability as it relates to company-owned property
in a home work environment needs to be evaluated and established as part of the development of a telework
program and associated policies. Issues to consider include responsibility in case of damage, loss or theft,
as well as repair, maintenance, troubleshooting and return of company-owned property in case of termination
of employment.
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Confidentiality & Trade Secrets: If employees working from home
have access to confidential information or are working on material that could be considered trade secrets
or proprietary, it may be necessary to have employees sign a nondisclosure or confidentiality agreement, or
to include such language as part of the telework agreement. This is a fairly common procedure when work may
eventually lead to patents or copyrights. Beyond that, information accessed and stored at a home office
should be protected just as it is protected at the corporate office.
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Discrimination: A policies are developed around who can and cannot
telework, the organization should consider state and federal laws related to employment discrimination.
Ensure that exclusion of any job classifications is based on sound business criteria and that the same
conditions of employment apply to teleworkers and non-teleworkers alike.
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Expenses: Organizations need to establish a policy concerning expenses
incurred by the teleworker. The organization should establish procedures for how expenses are reported or
tracked, what is reimbursable, and what is billable to clients. Expense examples include large one-time
expenses (equipment or software), monthly expenses (phone, Internet service fees), and occasional
expenses (office supplies). One expense that frequently arises is the cost of copies, since teleworkers
typically do not have a copy machine at home. For most organizations this process involves an update to
existing expenses policy, designed to cover travel, meeting, or entertainment expenses.
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Injuries in the Home Office: Generally, employers are responsible for the safety
of their employees and are liable for workers' compensation even when an employee is teleworking. However, it
is really the employee's responsibility to maintain a safe and productive work environment in the home. Employers
can fulfill their role by providing guidance. This may consist of written guidelines, a home office safety
checklist, or training. Some employers require employees to sign a statement that they have met safety standards
for the home office, some require that employees provide photographs, and some employers make home inspections.
OSHA does not require employers to inspect a teleworker's home office, but will notify employers if a teleworking
employee files a complaint. Home office safety is included in the toolkit as part of the discussion about setting
up a home office. Some employers do provide employees with an ergonomically correct chair to minimize the
chance of back problems.
Two other risks that could occur with teleworkers include automobile accidents and the timeliness in which the
employer learns of an accident. If an employee begins the day at their home work site and then drives into work
for a meeting, the trip could be considered compensable if an accident occurs. Teleworkers should be trained to
immediately report a work-related accident or injury, regardless of where occurs, complete any required forms
and be able to provide all associated medical documentation.
Organizations should plan on how they will investigate workplace injuries associated with working at home.
Make sure state laws that govern workers compensation, including rules, regulations and processes are fully
understood. It can be very difficult to determine if an injury is compensable under the law when an injury
occurs at home or another remote work location as there often are no witnesses. If an injury occurs at home
and you think it would be helpful to inspect the home, be sure to obtain written approval from the employee
before showing up.
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Liability: An organization may need to consult with their insurance advisor to
determine if liability insurance is required to cover an employee's home if it is being used for company business,
such as for teleworking. Is current coverage adequate to cover employer-owned equipment? Do teleworker's have
homeowner's or renter's insurance?
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Privacy: Generally in privacy law, a person has a valid privacy right only when it
can be proven that the person had a "reasonable expectation" of privacy. A home office would probably be considered
private although any employer-provided equipment or systems used from a home location would not be. To eliminate
any legal expectation of privacy, consider having teleworkers sign a waiver acknowledging that they understand
that certain aspects of their employment will be subject to unannounced inspection, including computer files,
documents and computers and telephone lines used during work hours for work purposes.
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Records Management: Records management is a consideration with employees
that Telework, especially if data is downloaded to an employees' personal computer. For example, Public
Records Management affects state and local government agencies, Sarbanes Oxley legislation affects publicly
traded companies, and HIPAA regulations affect medical and health care records in all organizations. These
laws remain applicable even when an employee is accessing these types of records remotely.
- If a state or local government agency receives a request for public records,
all public records for that request may be discoverable - even if the data resides on an employee's
personal computer. In fact, the employee's entire personal computer may be discoverable depending
on the situation and the public record request. RCW 42.17 is the Public Disclosure Act.
- Sarbanes-Oxley does not directly dictate technology, but instead "is about
improving transparency and accountability in business processes and corporate accounting to restore
confidence in public markets" according to Gartner.
As a result, data on an employee's personal computer needs to comply with an organization's policies and
procedures regarding Sarbanes-Oxley.
- All companies and organizations covered under the Health Insurance Portability and
Accountability Act (HIPAA) must be aware of the need to track and maintain records regarding the
privacy of "Individually Identifiable Health Information." For example, if a Human Resources employee
downloaded information onto his/her personal computer in order to work from home, the organization
would need to track and maintain that for six years.
One simple solution to the risk and liability associated with these scenarios is to require that employees
only use technology, such as a laptop, e-mail system, USB drive or other portable medium, provided by their
employer.
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Software Licensing: If some or all teleworkers must use company-owned
computer equipment then it will be necessary to have a plan in place for maintaining all of the software
installed in those computers through automatic updates, regular service windows during which the computer
must be brought back into the office, or through use of remote desktop control tools. If teleworkers use
their personally-owned computer equipment then the organization should decide which, if any, software will
be required to be installed and whether or not the organization will pay for the software license and
maintenance agreements. Alternately, the organization may issue guidelines for recommended software or
offer access to web-based software tools.
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Tax Issues: If a teleworker is working from home, do they live in a state other
than the employer's location where additional or different taxes may be involved?
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Unions: If your organization has labor contracts with unions, you may want to
engage union representatives early in the program development process. Unions are typically concerned with
the equity of work and opportunity. They will want to know that employees are selected for telework on an
equitable basis. They will also want assurance that telework is not being used to create a new lower tier
of employment where some employees are held to higher performance standards without requisite compensation.
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Wage & Hour Compliance: While both exempt (salary) and non-exempt (hourly)
employees are eligible to participate in telework programs, there are some additional issues to consider
for non-exempt employees.
In order to comply with the Fair Labor Standards Act (FLSA), non-exempt employees must accurately track all
regular and overtime hours to ensure proper compensation.
Additionally, the general rule is that if a non-exempt employee teleworks from home over 50% of the time,
home is considered their primary office location. As such, they must be paid for the time it takes them
to travel from home to their employer's location. Employers are not required to pay for mileage, only for
the time it takes to get from the primary office (home office) location to the employer's office.
Consult your HR/Personnel department for specifics pertaining to your exempt and non-exempt employees to
verify the proper reporting and recording procedures of teleworker hours so the organization avoids
and unpaid overtime violations.
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Zoning: Employees should verify that there are no local zoning laws that
might prevent or restrict them from working at home. If a permit or license is required for a home business,
who pays for it?
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These legal, labor and liability issues should be addressed in the telework agreement and any associated
policies.
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