by Ashlyn Lindskog

Gallup’s recent “State of the American Workplace” report suggested that 43% of U.S. employees reported working remotely in 2016, working at least some of the time in a location away from their coworkers.* In fact, the number of employers offering a work-from-home option has grown by 40% in the past five years.* This recent shift is in large part fueled by the evolution of collaboration and communication tools that aim to facilitate remote work and by an entering work force which seeks more flexibility from their employers.

While some employers see many benefits from allowing their employees to work remotely, those employers need to be aware of the risks and legal implications of doing so without a policy. First, employers should consider their eligibility practices and be sure they do not exhibit a bias when offering some employees the opportunity to telecommute but not others. Setting clear telecommuting eligibility guidelines allows for transparency and consistent application for employees.

Additionally, state and federal wage and hour laws apply to telecommuters, so employers should continue to establish work schedules and insist that telecommuters keep an accurate record of all hours worked. This may require employees to turn off their phones and laptops or notify supervisors when they “clock” in and out of work. Further, while home-to-work travel is not compensable, if a telecommuter starts the workday at home and then drives to the office, the travel time may generally be compensable as it represents travel time between two work locations.

Another unique challenge employers with remote employees face is managing IT security and privacy/confidentiality policies while employees work from home, co-working spaces, or coffee shops. Employers may want to consider implementing mobile device management provisions into their policies and investigate other available cyber security tools to protect their data when employees are accessing that information remotely.

Home-based employees are also entitled to the same workers’ compensation benefits as office workers. Employers should consider requiring employees to complete a home safety survey, remediating obvious hazards and analyzing owner's and/or renter’s insurance policies. Employers may also be required to provide telecommuting as a reasonable accommodation under the ADA/ADAAA and should become familiar with how to handle requests for FMLA leave from employees who work remotely.   

Martin Pringle’s employment law attorneys can help employers navigate the logistics and mechanics of drafting and implementing a telecommuting policy for their employees that will help mitigate the employer’s risks in the ever-changing “virtual” workplace.