With the rapid advances in mobile technology, telecommuting has gained popularity in recent years throughout the business community, including in New Jersey. Gone are the days when every employee has to sit at the desk to complete projects, review and revise corporate documents, or participate in meetings and teleconferences. It is hard to ignore that tablets, smart phones, remote access software, web based databases, and various other communication platforms have transformed the way people live, work, and play.
Many businesses have embraced these new technologies to allow their workforce to telecommute, pursuant to both formal and informal policies, in light of the numerous commercial advantages presented by providing employees with the option to work remotely. Indeed, sophisticated businesses recognize that telecommuting:
(1) Promotes productivity during circumstances that otherwise would result in an idle workforce such as natural disasters, inclement weather, traffic, illness, and family emergencies;
(2) Improves employee morale by producing a better work/life balance thereby improving retention and lowering recruiting costs;
(3) Results in cost savings by reducing the amount of office space, electricity, supplies, and other overhead needed to run a business operation;
(4) Reduces the amount of sick leave taken and/or abused by employees to care for themselves and their family members;
(5) Expands the geographic area from where employees can be recruited into the workforce; and
(6) Aids the environment and society by reducing traffic congestion and pollution.
Simply put, an increasing number of businesses nationwide and here in the Garden State have realized the many benefits of telecommuting. Remote work arrangements can provide companies with a competitive edge by improving workplace morale and increasing productivity and efficiency. Most importantly, businesses with existing policies understand that telecommuting can positively impact the bottom-line.
However, as the ability of employees to connect remotely with their offices has dramatically increased, so too have the business and legal risks. Accordingly, companies small and large that allow employees to telecommute should create and implement an official, memorialized telecommuting policy to specifically address potential issues before a business advantage becomes a damaging liability.
In doing so, businesses should take into consideration the viewpoints and concerns of all stakeholders who are impacted by a telecommuting workforce. Specifically, management should speak and confer with upper and mid-level managers, technology directors, as well as staff while drafting the company’s policy and, at minimum, before the policy goes live.
In drafting a telecommunications policy, companies should consider and address the many risks that may arise from both the business and legal perspectives. Among the business risks that should be addressed include, but are not limited to:
(1) Whether the company is going to pay for a telecommuting employee’s upfront costs such as computer equipment, scanners, software, furniture and related expenses for his/her home office, and/or monthly internet/phone and insurance bills?
(2) How will the company supervise and monitor telecommuters? Will they be required to call in to supervisors on a daily basis to receive and report on assignments? If so, how frequently and by what means/methods will employees be required to report in?
(3) Will managers be allowed to work from home if their duties require them to supervise other employees? If so, how will managers hold their reports accountable?
(4) What efforts will be made to build company culture, loyalty, and commitment to the organization? How will the company ensure that telecommuters are part of a team and understand the company’s objectives, goals, and expectations?
(5) Will telecommuters only be assigned specific, limited duties? What efforts will be made to ensure telecommuters are not left out or overlooked from receiving the assignments or benefits available to the larger workforce?
(6) How will performance standards, productivity, and efficiency be measured?
(7) How will the company secure and protect sensitive confidential information? What protocols/technological safeguards need to be put into place to protect the confidential information of the company and client?
(8) What procedures will govern when a telecommuter is terminated from employment? How will the company retrieve its equipment and secure the confidential information entrusted to the employee? What safeguards can be adopted to avoid unintentional/intentional data theft or destruction of data?
(9) Who has the authority to approve/deny/rescind a telecommuting arrangement and on what grounds will that decision be based? On what basis will telecommuting privileges be revoked?
(10) Which groups of employees/job titles will be authorized to telecommute? Will employees be required to attend meetings with colleagues/supervisors/clients in-person on a periodic basis?
These are just a sample of the business risks that should be discussed when drafting a policy. Of course, companies may identify many other risk factors that are specific to their own business situation.
In addition to the foregoing business risks, companies should also consider and address the legal risks associated with telecommuting in their written policies including, but not limited to:
(1) How will the company monitor and track work hours for non-exempt employees such as administrative and back office staff? Will the company impose strict timekeeping procedures to ensure federal and state overtime laws are complied with?
(2) How will the company prevent non-employees from viewing confidential and/or privileged client documents and communications in the home office?
(3) Will the policy prohibit the improper use of copyrights/trademarks, the inappropriate copying/use of software, and the downloading of programs/software onto company owned equipment?
(4) How and when are accidents that occur in the home to be reported to the company? Who will be responsible for maintaining insurance against same? Does the company’s worker’s compensation policy provide coverage for accidents in the home? Will telecommuters be required to indemnify, defend, and hold the company harmless from any claims brought by third parties injured in the telecommuters’ home?
(5) Who is responsible for handling any federal/state/local tax and/or zoning issues resulting from the telecommuter’s use of his/her home or a portion thereof as an office?
(6) How will the company enforce violations by telecommuters of the employee handbook or other employment policies including, but not limited to, its anti-harassment/discrimination, computer use/social media, insider trading, and workplace conduct policies?
(7) How will the company ensure that the telecommuting policy is not applied in a discriminatory manner based on a protected classification/activity or in a retaliatory manner?
(8) Will the telecommuting policy have any exceptions or be applied differently to individuals with disabilities who seek to telecommute as a reasonable accommodation or to individuals who take a leave of absence for their own medical conditions or to care for a family member?
Again, these are just a sample of the legal risks that should be considered when drafting a telecommuting policy. Businesses will undoubtedly identify additional threats as they review and discuss their specific issues.
Upon answering the foregoing business and legal questions, companies should publish employee guidelines and also require employees who are approved to participate in the telecommuting program to formally execute a telecommuting agreement memorializing their understanding of, and willingness to comply with, same.
The telecommuting policy and agreement should also clearly articulate the rights reserved by the company. For example, the business can institute provisions clarifying that it reserves the right to discontinue the telecommuting program at any time, to rescind telecommuting privileges for any particular employee upon reasonable notice, and that the failure by an employee to comply with any company policies/procedures may result in not only the revocation of telecommuting rights but also the potential institution of disciplinary action up to and including termination.
By taking the foregoing steps, businesses can enjoy the benefits of allowing their employees to telecommute while mitigating the risks associated with telecommuting. In the event that assistance is needed by a law firm to create and draft a telecommuting policy or agreement, experienced labor and employment counsel should be engaged because as the old saying goes – “an ounce of prevention is worth a pound of cure.”