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A note for our readers: the views reflected by the authors do not reflect the views of ASPA.
By Susan R. Fiorentino
Increasingly, public employers are seeing the value of offering remote work options to employees. While there are benefits both to employees and employers for this type of work arrangement, remote workplace options must be adopted with care to avoid any legal liability by the employer. Before an employer ships off employees to a distant location, it is important to remember that “out of sight” is not “out of mind.”
From a legal perspective, perhaps one of the most important considerations for managers is compliance with wage and hour laws. Specifically, the federal Fair Labor Standards Act (“FLSA”) addresses how non-exempt employees must be paid, and requires minimum wage and overtime compensation for such workers at a rate of one and one-half times the regular rate of pay for every hour worked more than 40 in a workweek. Generally, non-exempt employees are those who fall outside of the exemptions under the law, such as employees who perform mainly professional, executive or administrative duties. If non-exempt employees are permitted to work from a remote location, managers must implement strict procedures to record the hours worked for these employees. In addition, managers should discuss with employees the importance of accurately recording time worked. Remember that “after-hours” activities, such as answering emails or returning phone calls, may be considered compensable time that should be reported by non-exempt employees. If employers are uneasy about paying overtime, then it is important for them to convey the importance of signing out at the end of a day and not engaging in work beyond the 40 hours in a workweek.
Another consideration for managers is ensuring compliance with state workers’ compensation laws. States require employers to carry workers’ compensation insurance in order to provide compensation and medical benefits for workers who suffer work-related accidents or illnesses in the workplace. Often, these laws define the workplace to include permanent home offices. For example, under Pennsylvania regulations, the term “workplace” is defined as “a permanent location in this the Commonwealth of the applicant-employer at which full-time or permanent part-time workers perform their job duties or from which job assignments are made and administrative controls are exercised.” Thus in some states, a worker who injures herself while working in a home office could make a claim under the employer’s workers’ compensation insurance. Accordingly, the employer needs to ensure that employees have adequate and safe working conditions in the home.
An additional concern for employers with remote employees is the security of confidential employer information. Confidential information that is contained on employer-owned laptops or other electronic devices may be easier to secure in an employer’s own work environment than in an employee’s home office. To ensure that confidential information is kept confidential, employers need to implement strong policies establishing protocols for proper use and security of confidential information. Such policies should include notification to the employee that the employer is entitled to inspect work computers, even if they are in the employee’s home office. In addition, remote workplace employees should sign a nondisclosure agreement that clearly spells out what information the employer considers confidential and steps that the employee must take to ensure confidentiality.
Next, employers should be familiar with state and federal anti-discrimination laws when making telecommuting assignments. First, the Americans with Disabilities Act (“ADA”) requires that employers make reasonable accommodations for employees with disabilities. The Equal Opportunity Commission takes the position that offering work from an employee’s home may be a reasonable accommodation in certain circumstances. Thus, even employers without formal remote workplace options may nonetheless be required to provide work from home as an accommodation to a disabled employee. Similarly, under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against employees because of race, color, national origin, gender or religion. Employers who permit employees to work from home must ensure that those decisions are made in a consistent manner, without regard to protected categories such as gender or race.
Finally, employers with unionized workers should consult the collective bargaining agreement for administration of remote workplace policies. Such policies are likely to be spelled out in the contract.
For agencies offering remote workplace or telecommuting options to employees, consider these best practices. First, ask whether there are resources available to implement and train managers on quality policies and procedures that will help keep the organization out of legal hot water. It’s no secret that human resource managers, especially those working for state and local agencies, wear many hats. From updating workplace policies, to handling employee relations, to ensuring legal compliance with the myriad employment laws, increasing demands are placed on the public human resources manager. Creating and monitoring remote workplace policies will take time and effort, but may well end up saving time and money in the end. Next, draft and implement policies that address the issues outlined above. At a minimum, such policies should clearly spell out the employer and employee obligations under the FLSA for accurately recording time worked. In addition, the policies should address special concerns about confidentiality and workers’ compensation as they apply to home offices. After policies have been adopted, make sure to circulate the policies to employees, and get signed acknowledgements that the employees have read and understand the policies. Such proactive actions should help reduce the risks associated with implementing remote workplace options for employees.
Author: Susan Fiorentino is assistant professor at West Chester University in the Department of Public Policy and Administration, where she teaches courses in the human resource concentration. She also maintains a limited law practice, providing employment law counseling to clients. She received her J.D. from Villanova University School of Law. She frequently lectures to HR groups. Ms. Fiorentino can be reached at [email protected].