Guest post by Kayvan Iradjpanah, an attorney with Littler Employment & Labor Law Solutions Worldwide
The traditional boundaries of the workplace are quickly becoming a relic of the past due to the burgeoning presence of telecommuting in today’s workforce. Employers frequently report many benefits from employing teleworkers – such as boosts in employee morale, reductions in overhead and increases in workplace efficiency. These advantages, however, must be balanced against the potential legal implications of allowing employees to work remotely and the vigilance necessary to remain compliant with California’s employment laws.
We highlight, here, a few key issues to consider:
Wage and Hour Compliance
The presence of teleworkers can make compliance with California’s complex wage and hour laws challenging. Employers with non-exempt teleworkers are required to provide meal periods and rest periods under California law. Teleworkers also fall within the California Labor Code’s overtime and double-time pay requirements. Overseeing compliance can be difficult since teleworkers perform their work in a remote setting. Consequently, employers should implement legally compliant policies and explain them to teleworkers. Furthermore, employers with teleworkers should frequently oversee employee schedules and audit time-keeping records to proactively identify potential issues.
It is important to remember that an employee’s status as a teleworker does not necessarily mean that she is also an independent contractor. Misclassifying teleworkers as independent contractors can potentially result in a claim for unpaid wages – or an audit by the Internal Revenue Service or Employee Development Department for unpaid taxes.
Workers’ Compensation
Employees are generally eligible for workers’ compensation benefits in the event of a work-related injury. This protection extends to injuries and illnesses that occur while an employee performs work at home. Teleworkers pose a unique challenge because it can be difficult to determine whether a teleworker’s injury is work-related. This challenge can also be compounded by frequent workplace travel.
Although injuries sustained during an employee’s commute to/from work typically fall outside of the employer’s responsibility, this rule often does not apply when an employee regularly commutes throughout her workday or does not have a fixed place of employment. Implementing a telecommuting policy can protect an employer by defining the boundaries between employer and teleworkers.
Establishing normal business hours can also protect employers from false claims that the employee was injured while working late at night. Finally, employers should closely review workers’ compensation insurance policies to determine whether they cover remote or home-based workers.
Privacy & Data Security
Telecommuting invariably implicates data security concerns for employers. Many employers choose to minimize risk by mandating the use of employer-provided equipment, which better enables them to implement electronic security measures.
Other employers allow the use of dual-use devices such as personal cell phones or laptops. Since permitting employees to use dual-use devices may allow, for instance, a manager to access an employee’s work-related emails (e.g. personal Gmail account) or cloud-based data (e.g. photos on Dropbox), employers who access content on dual-use devices without employee consent risk violating the Computer Fraud Abuse Act (CFAA) or related state laws.
For instance, using a remote wipe could potentially violate the CFAA if it deletes both the employer’s data and the employee’s personal information stored on the device. Similarly, the Stored Communications Act prohibits unauthorized access to email stored with a third-party email service provider. Employers allowing dual-use devices should strongly consider implementing a dual-use device policy and a dual-use device user agreement to mitigate their risk.
Disability Law & Reasonable Accommodations
Telecommuting also impacts an employer’s obligations under the Americans with Disabilities Act or the California Fair Employment and Housing Act. Telecommuting may constitute a reasonable accommodation for a disabled employee even if other employees do not telecommute. Additionally, employers should respond to requests for telecommuting arrangements fairly and consistently to avoid an inference that the employer’s decision to allow telecommuting was discriminatory. Maintaining and consistently applying a telecommuting policy can set parameters for neutral decision-making.
In a constantly evolving legal landscape, employers should remain vigilant to ensure that their practices comply with applicable employment laws. Implementing policies reviewed by experienced counsel can help minimize risk as employers push past traditional workplace boundaries and facilitate telecommuting.
Editor’s note: TriNet recommends all telecommuting arrangements be governed by telecommuting agreements. These agreements would outline – among other things – the expected hours worked and make reference to the policies that govern employment despite the remote location, such as confidentiality, internet usage and other required procedures. Contact TriNet to learn how we can provide you a template telecommuting agreement.
