Mid-market employers can mitigate much of the liability exposures inherent in allowing employees to work remotely by formalizing the parameters of their telework arrangements.
Whether it's to accommodate injured or disabled workers, reduce overhead costs, boost employees' job satisfaction and productivity, or attract and retain high-level talent, nearly 90% of mid-market employers offer some type of telecommuting flexibility to their employees, according to an October survey by WorldatWork, a Scottsdale, Ariz.-based human resources industry association.
However, the survey also found that nearly one-third of all employers that offer telecommuting and other workforce flexibility programs had no written policy or document outlining the rules and requirements for their programs.
By not clearly defining the limits of their telecommuting arrangements, companies could find themselves exposed to a range of labor-related civil and legal liabilities, including workplace discrimination, wage-and-hour disputes and workers compensation claims, employment law and human resources experts said.
“One of the biggest things employers can do to help with the liability issues is having formal policies in place,” said Rose Stanley, WorldatWork's Scottsdale-based total rewards practice leader.
The process of drafting such policies should begin with an open dialogue involving all departmental or divisional leaders whose operations could be affected by moving employees' day-to-day activities off-site, Ms. Stanley said.
“You don't do this in a vacuum,” Ms. Stanley said. “You have to talk to your facilities management team, your (information technology) department, someone from your senior management and whomever it is that's going to be training your managers and employees to work within this policy. It works best when you have all those different groups working together.”
Many legal risks employers face by permitting telework arrangements can be addressed by establishing unambiguous, objective telecommuting eligibility limits based primarily — if not exclusively — on whether employees' core job functions can be performed off-site, experts said.
“It's not going to work in every environment, even among different groups within one company,” said Christine Walters, director of the Society for Human Resource Management's Maryland State Council in Baltimore. “It obviously won't work for employees on a factory floor, but it would probably work for a lot administrative or corporate offices.”
However, even if employers limit telework eligibility solely by job function — leaving aside more subjective metrics such as individual employees' reliability, past performance and ability to work independently — perceived bias remains an issue, particularly if groups that are ineligible for telework arrangements are dominated by one or more protected classes under federal and state employment nondiscrimination laws, experts said.
“Employees that do not have the opportunity to telecommute may claim that they're being denied that opportunity based on their age, race, gender or other protected characteristic,” said Nancy Vary, a New York-based principal at Buck Consultants L.L.C. “That kind of perception could be dangerous.”
Eligibility requirements should also be applied to telecommuting arrangements offered only on an ad-hoc basis to injured or disabled employees as a “reasonable accommodation” as defined under the federal Americans with Disabilities Act, experts said.
“It's a bit of a Pandora's box, in that once you open up the concept of telecommuting as a reasonable accommodation (without limiting eligibility), you then become susceptible to employees from all job functions filing requests for that same accommodation,” said Dean Rocco, a Los Angeles-based partner at law firm Wilson Elser Moskowitz Edelman & Dicker L.L.P.
“It can erode some of an employer's arguments against offering telecommuting arrangements in general.”
Another common source of concern for employers offering part-time or full-time telework arrangements — especially those that allow hourly employees to telecommute — is violations of wage-and-hour regulations under the federal Fair Labor Standards Act.
Additionally, permitting employees to work from their home or another remote location could expand the traditional “cause and scope” of their job for the purposes of assigning workers compensation for injuries incurred at home.
For example, an Oregon appellate court ruled in 2011 that an employee was due workers comp when she tripped over her dog while working at home.
Experts said employers can greatly reduce their exposure to potential risks by including in their formal telework framework a set of explicit boundaries, for the hours during the day employees are considered to be on company time and for the areas in their home considered applicable work areas under a workers compensation policy.
“It's important to set out in your policy what the actual work hours are going to be, and where specifically you're going to be working,” Ms. Stanley said.
“That way, if a workers comp claim comes in, you'll be able to determine whether you're liable for that claim based on when and where the injury happened.”