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Employers grapple with telecommuter, technology risks

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LAS VEGAS—Employers are struggling with telecommuting-related risks as well as managing the risks associated with technology in the workplace, experts say.

The law is just not keeping up with the rapidly changing electronic workplace, Jonathan W. Yarbrough, an attorney with Constangy, Brooks & Smith L.L.C. in Asheville, N.C., told the Society for Human Resource Management's 59th annual conference last month in Las Vegas.

During a separate session, Matthew S. Effland, an attorney with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Indianapolis, discussed developing electronic workplace policies.

Overtime is among issues about which employers with telecommuting workers must be concerned, said Mr. Yarbrough. At-home telecommuters, for instance, may be entitled to overtime pay if they work more than 40 hours a week.

"That can be a serious issue right there" and can lead to a federal Department of Labor investigation, said Mr. Yarbrough. "You need to be really careful about that." It is important that employers keep adequate records and "clearly define limitations" on hours worked, he said.

Telecommuting also raises the issue of what is a reasonable accommodation for disabled employees, said Mr. Yarbrough. "The courts are kind of split on this issue right now" as to whether telecommuting can be considered a reasonable accommodation and if a worker's physical presence at the worksite is an essential job function.

According to the Equal Employment Opportunity Commission, Mr. Yarbrough said, factors that employers should take into account include whether the job requires supervision, what equipment is needed and the type of interaction involved. "Is this a position that requires some face-to-face interaction, or can it just be done at home?" he asked.

Safety issues are a concern as well. An employee who breaks a leg while getting a cup of coffee at his home office "could very well be a workers comp claim," said Mr. Yarbrough. "Don't automatically dismiss that type of claim."

"Choose your telecommuters wisely," he advised.

Employees who have problems focusing on their work are not good telecommuting candidates. Do not permit new employees to be telecommuters, either, he said. If possible, have new hires spend time in the office first so they can become familiar with the company's culture.

Also, take steps to protect confidential data accessed by telecommuters, he said. "You need to address that as well," Mr. Yarbrough said.

Other concerns

At the same time, many employers are struggling to manage technology-related risks in the workplace, Mr. Effland said.

When you have technology, "you're going to have people who abuse that technology," Mr. Effland said. "There are steps companies need to take to get a handle on it."

Employees at private firms do not have a constitutional right to privacy at work, said Mr. Effland. "The key is to limit the expectation" of privacy and explicitly communicate this to employees, he said.

But employers should also avoid "obvious mistakes," such as placing video cameras in the ladies' washroom. In those cases, "courts will bend over backwards" to come down on the company, he said.

Discussing wiretaps, Mr. Effland said employers need at least one-party consent under federal law and some states have more stringent requirements. This consent provision does not apply, though, to voicemail, answering machines or other recorded media.

Mr. Effland said under the 1986 Electronic Communications Privacy Act, electronic communications cannot be intercepted in transit, but can be read either before or after transmission.

He also warned that even deleted e-mail can be retrieved.

"Your e-mail is not private," he said. Do not put anything in an e-mail you would not feel comfortable "shouting at the top of your lungs" while standing on top of your desk in the middle of the day, he said.

Mr. Effland said one common factor in developing policies on electronic communications should be the right to discipline violators. "It sounds simple, but you need to let them know that," he said. Also, have employees sign a consent form acknowledging they know the company policy, Mr. Effland said.