One More Corona-Problem: The Telecommuting Employee

by Edward Easterly, Esq.

On March 16, 2020, thousands of employees in Pennsylvania instantaneously became “telecommuters” for their employers.  Most employers were not prepared for this immediate change, primarily due to the fact that they did not previously permit or utilize remote workers for their business.  Impacted businesses were forced to adopt remote workplaces or close down for a period of time.  Over the last several months, employers have adapted to the remote workforce, but the issues of compliance remain.  If a business does not ensure that it is handling remote employees in accordance with applicable laws and best practices, it may be presented with unwanted lawsuits and liability down the road.

 As an initial matter, if an employer permits employees to work remotely, it should have a “telecommuting policy” and “telecommuting agreement” in place with its employees.  The telecommuting policy should specifically address which positions are permitted to telecommute and the requirements an employee must adhere to in order to remain a “remote employee.”  The telecommuting agreement further establishes what is expected of an employee who is permitted to telecommute and the ramifications if the employee fails to comply with the expectations.

One issue which should be specifically addressed in the telecommuting policy and agreement pertains to tracking hours worked.  If an employer permits an employee classified as “non-exempt” under state or federal wage and hour laws to work remotely, the employer must establish protocols and procedures to capture all hours that an employee works during a given day.  Employers should not just accept an employee’s “word” with regard to how many hours were worked on a given day.  If an employer does not establish such written protocols for tracking working hours, it may be subject to a wage and hour lawsuit from such employees. 

Another issue that must be addressed is the work area which the employee uses while working remotely.  Employees should be required to designate a certain area of the home as their “working area.”  By designating a specific area as the “working area,” an employer may limit potential claims for work-related injuries if an employee trips over a pet, a toy, or any other variety of potential hazards left in the home.

Employers must also establish procedures for any technology which is used by an employee while working from home.  Will an employee use their own devices (computer, IPad, phone), or will the employer provide such technology for use by the employee?  If the employee is permitted to use their own personal devices for work-related matters, a business must address the actions an employee must take or adhere to in order to protect a company’s interests, including confidential information.  In this regard, a business should require an employee to install firewall protections and limit access to the devices so as not to compromise company information.  

If an employee is provided with a company-owned device, the employee should acknowledge that they are only to use such devices for company business.  Employees should further acknowledge that they are responsible for the costs of any such devices in the event they are lost, stolen, or damaged.  Employees must also acknowledge that the devices remain company property and can be monitored by the company at its discretion and must be returned upon request.

Finally, a business must have an established procedure to address performance-related issues for any remote employees.  This requirement protects a business for a variety of reasons.  As an initial matter, a business wants to ensure that the remote employees are performing in the manner expected.  More importantly, from a legal perspective, however, is that the established procedure may provide a defense for an employer in the event of a claim of discrimination.

In this regard, to the extent an employer requires an employee to return to the workplace or denies an employee the ability to work remotely the established procedures, to the extent they are uniformly followed, would be the first line of defense for such a claim.  As with all such claims, the facts of the case would be determinative.  Accordingly, if an employer establishes policies and procedures in name only, without following the procedures for all similarly situated employees, any benefit of having a policy is negated.

As many employers have realized in the past several months, permitting employees to work remotely can be beneficial for both the employer and the employee.  If an employer, however, does not establish documented protocols for handling remote employees, the potential benefit will be outweighed significantly by the potential liability. 

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