Telecommuting – A Necessary Option, But Beware of Certain Legal Issues

March 27, 2020

There is no question that telecommuting has become a necessity. In many cases, it’s the only option for employers to keep their workforce going. In doing so, I want to remind employers of some legal considerations.

The Practicalities

Ordinarily, I raise some practical considerations. Such as, whether the nature of the job lends itself to telecommuting and the employee makes a good candidate for that type of work. However, these considerations are largely semantics given the lack of choice at this time.

If your employee demonstrates performance issues that impact their ability to work without direct supervision, continue to monitor them as best you can. Ideally, an employer has a specific written agreement with any telecommuter that details the parameters and expectations of the relationship.

Such as:

• Whether the work is to be done exclusively from home or whether the employee can expect to spend a certain number of hours in the workplace
• If they have clerical support, and if so, how that works
• If the employee must make reports to the employer on a regular basis
• Whether clients or vendors visit the employee in their home office
• How performance reviews are conducted
• What happens when an employee needs a computer or other technical support
• What hours the employee keep, including whether they must be available to the employer or clients during certain times of the day

Again, there is probably a need to be more flexible with regard to many of these. Even so, it is still a good idea to put the most basic terms of the arrangement in writing.

Other Legal Considerations

1. Work-Related Injuries

An employee working out of the home is covered by workers’ compensation insurance like an employee working in an office would be. However, it can be more difficult to determine whether an injury at home arises from the course of work because of the interaction between business and personal activities.

For instance, an employee might slip on ice going to the mailbox. They may argue the injury is work-related because they retrieved mail expected from the employer. If the employee also receives personal mail at the same mailbox, there is a question as to whether the activity was work-related or personal.

There is also the potential that injuries that occur while the employee travels from home to the office would be work-related. Although such injuries normally do not arise out of and in the course of employment based on the “coming and going” rule.

That analysis is based on the premise that the employee’s primary worksite is the office. If the primary worksite is the home, an injury the employee sustains on the way to the office might be work-related. Questions as to whether an injury occurred are complicated by a lack of witnesses and access to investigative information.

2. Tracking Time Worked

If a non-exempt employee works from home, it may be a challenge to keep accurate track and control hours worked. An employee must be paid for all time worked, authorized or not. Consequently, employers should have a system to ensure all time worked is accurately reported and paid. Ultimately, the employer must disprove any claim for unpaid time. It is imperative to use a sufficient reporting or tracking process.

3. Regulation of Activity

Most often, an employee telecommuting from home uses a computer remotely connected to the employer’s system. This can create privacy issues for both the employee and the employer. As with employees in a traditional workplace, the employer must apply its rules regarding the content and use of email to employees working out of the home.

These include limitations on inappropriate content of work-related email communications. Consequently, an employee working from home must know that they cannot expect privacy in email communications, as one in the workplace cannot. This policy should be described in the handbook received by all employees, whether working out of home or office.

In addition, the employer may need to take precautions to protect the privacy of the business product. This relates to both trade secrets that the employee may access through the computer as well as confidential records in paper files maintained in the employee’s home office.

An employer should require the employee to maintain both the computer and any work-related paperwork in a separate area of the employee’s home off-limits to family members. An employee’s children or spouse should not be able to access the work computer for personal use.

4. OSHA

All employers subject to OSHA’s General Duty Clause require them to “furnish to each employee’s employment and a place of employment free from recognized hazards causing or likely to cause death or serious physical harm to the employees.”

With regard to home-based workers, OSHA generally does not conduct inspections of employees’ home offices. It does not expect employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant is advised of OSHA’s policy.

If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions. It does not follow up with the employer or employee. Employers are responsible for home worksites for hazards caused by materials, equipment, or processes that the employer provides or requires in an employee’s home. However, all employers are still responsible to keep appropriate records regarding work injuries.

5. Termination

Employees working from home often receive office equipment belonging to the employer. This can include computers, telephones, fax machines, and office furniture. Upon termination, the employer wants to recover that equipment. However, the options for doing so are limited.

The employer cannot enter the employee’s house without permission and remove the equipment. If proof of ownership can be shown, it might be possible to accompany the police to the employee’s home and recover it under those circumstances. Employers cannot withhold the employee’s last paycheck until the equipment is returned.

See 26 M.R.S.A. §626

An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer where payrolls are kept and wages are paid. In addition, the law prohibits an employer from reducing the employee’s final check by the value of the equipment, unless the employee agreed in writing that the use of the equipment was a loan that had to be repaid upon termination.

See 26 M.R.S.A. §629

The deduction can be made to an employee’s pay for a loan or debt authorized by the employee in writing. This information is accurate as of March 27, 2020. It is subject to change based on any new legislation.