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WASHINGTON
--With the price of gas rising each week, many employees are willing to forgo previously desired job opportunities to find one with a less expensive commute.In response to this trend, many employers are implementing flexible work schedules and allowing employees to telecommute. This trend appears to benefit both employers and employees--reduced overhead costs and increased productivity for employers and a reduction in time and money spent commuting along with an increase in flexibility and work-life balance for employees. But several legal issues should be considered prior to implementing, or taking advantage of, a flextime work schedule or telecommuting policy.
Wages and Overtime
As technology improves and employees spend more time out of the office, employers should ensure they have policies and procedures in place to address any wage, hour, and overtime issues that result. Currently, many employees begin their workdays prior to arriving at the office, and many more continue to work from home in the evenings.
Under the Fair Labor Standards Act, covered employers must pay non-exempt employees for all overtime hours worked. Therefore, employers should make sure at-home employees are working only their agreed number of hours and should remain sensitive to work habits that could result in overtime hours.
Employers should determine how to record hours worked by employees at home, including time spent reviewing business materials on company-issued electronics. Developing a system to monitor regular work hours, meal breaks, and overtime will help avoid liability for unforeseen wage and hour issues.
Data Security
When employees take advantage of a flexible work schedule or decide to telecommute, company information is no longer contained to the workplace. An employer's data security policies must address this change in work environment and protect an employee's privacy. Employees who transfer sensitive material between personal and work e-mail accounts to allow them to work from home are putting both themselves and their companies at risk.
Virginia's data security laws leave individuals and companies vulnerable to fines and private lawsuits as a consequence of any data security breach that could cause identify theft or fraud against any Virginia resident.
Additionally, privacy issues may arise for an employer when an employee telecommutes. Transfer of data from work to personal computers may compromise an employer's confidential information.
As the line between an employee's work and private life blurs, employers may be interested in monitoring the employee's hours worked and working conditions. Employers should obtain employees' consent prior to monitoring e-mail communications.
Companies should also create policies and procedures restricting employees' use of personal e-mail accounts for business purposes, as well as the storage and deletion of company information on personal home computers and other electronic devices, to avoid dissemination of confidential information, costly litigation and sanctions.
Workers' comp
The blurred division between the workplace and home is also important for employers and employees because it can determine whether or not an employee injured while working at home or commuting to work is covered under the Virginia Workers' Compensation Act. Traditionally, worker's compensation did not cover accidents that occurred off employer's premises. When an employee performed a specific task at his or her home at the employer's request, however, the employee was covered by workers' compensation.
Additionally, employees are not covered for injuries occurring during the commute to and from work, unless the employee has a secondary work site at home.
Both employers and employees need to determine when the home is a secondary work site, considering the regularity of work done at home, whether working at home is simply a convenience for the employee, and whether there is business equipment in the home. This determination will affect the employer's workers' compensation liability insurance rate.
If an employer exerts control over home working conditions, the employer will most likely be liable if an accident occurs at home. Even if the employer does not exert control, dangerous home conditions might still exist that could result in employer liability as courts generally apply workers' compensation statutes broadly.
Advice
Before implementing or taking advantage of a flextime work schedule or telecommuting policy, both employers and employees should consider and resolve "what if" scenarios before they arise. Employers will benefit from supplying employees with appropriate work-related equipment, clarifying employee obligations in writing, and making its policies and procedures specific--flexible work schedule, telecommuting, storage and deletion of company information on personal electronic devices, and employee use of personal e-mail for business purposes.
Employers should be sensitive to work habits that could result in overtime hours and establish a record-keeping system for at-home employees to record hours worked. Employees will benefit from maintaining clear boundaries between work and personal responsibilities, making it clear when breaks are being taken, and being careful not to use personal e-mail accounts
Alyson J. Guyan is an associate with Littler Mendelson and is |
