Law: A few more thoughts on telecommuting

Last week we considered several legal issues associated with employees that telecommute. Here are some additional considerations - and proposed solutions - to avoid potential legal problems.

Workers' compensation and the Occupational Safety and Health Administration - What happens if your telecommuter slips and injures herself on work-related papers at home?

Remember, employers are responsible for a safe working environment for their employees regardless of whether their employees work from home or the office.

To limit safety issues, establish the telecommuting employees' work time and work environment and require them to designate a specific area at home to serve as an office and to take lunch and rest breaks at designated times.

Likewise, home offices may need to comply with OSHA regulations on recording work-related injuries and compliance with safety and ergonomics policies - although OSHA has indicated it will not conduct routine investigations of home-based work sites nor require employers to do so unless there is a complaint.

Payroll records and compensation - The Fair Labor Standards Act (FLSA) requires employers to pay certain non-exempt employees for all hours worked and to keep accurate information regarding hours worked.

The FLSA explicitly applies this rule “to work performed away from the premises or the job site, or even at home,” and requires employers to count the time as hours worked if “the employer knows or has reason to believe that the work is being performed.”

Likewise, the FLSA requires employers to compensate those employees at or above the federal minimum wage for all hours worked. It also requires employers to pay those employees overtime for all hours worked over 40 in a given workweek.

The federal rules on overtime, waiting time, on-call time and rest and meal breaks apply to qualifying telecommuters as much as they do to employees in the workplace. Therefore, employers with telecommuters should establish some mechanism to track those hours and to ensure their accuracy in the absence of a supervisor to monitor the employee's working hours.

Out-of-state employees - Who gets the taxes, which states' unemployment rules apply, etc.?

The solution: Have a written telecommuting policy and written agreements with employees who telecommute. As with other terms and conditions of employment, an employer should have a policy that sets out employer expectations on telecommuting.

Likewise, the employer also should have a written telecommuting agreement with those employees. The agreement should set out the framework for the telecommuting assignment, the number of hours expected to be worked each day or week and how hours are to be recorded.

The agreement should further state it does not alter the employment at-will status, but should cover such topics as when the employee is expected physically to be working; when the employee is expected to be at the alternative work site; the duties and assignments to be performed at each site; and that any overtime at any work site must be approved in writing in advance by a supervisor.

Other terms should state the employee agrees to remain accessible during designated work hours; that he or she will maintain a safe and secure work environment; that any equipment and records are for work purposes only, remain the employer's property and will be returned if employment ends; and that all work product will be safely and confidentially stored by the employee at the alternative work site.

Payroll and tax issues should be clearly described.

Finally, there should be a general clause reserving the employer's right to pull the employee back into the office if necessary.