During the White House’s Summit on Working Families on June 24, 2014, President Obama indicated he was signing a presidential memorandum requiring every federal agency to address flexible work schedules and give employees the right to request such schedules. Absent what could be a dramatic increase in workplace flexibility for federal employees, it is undeniable that the demand for flexibility and work-life balance is on the rise.
While workplace flexibility encompasses a wide array of accommodations, arguably the one most talked about is telecommuting. According to the 2010 Census, there was a 35% increase over the last 13 years in the amount of people working from home at least one day per week. The Bureau of Labor Statistics reported 24% of employed Americans work from home at least some time each week.
A long held belief is that this trend is only common in large organizations. However, recent studies are discovering different results. The Families and Work Institute found that 11% of small employers (defined as having 50-99 employees) allowed employees to occasionally work some regular hours from home.
If your organization is one of the many evaluating whether telecommuting will work for your company, here are three factors to consider:
Not every position lends itself to telecommuting. A company should first identify which positions may be done remotely. This would include jobs that do not require face-to-face interaction with clients or with other employees. Employers should also assess whether the position would require sensitive and confidential data to be sent through email or stored on the employee’s remote computer — and, if so, whether the company has the technology to secure and protect this data.
Although a position may be appropriate for telecommuting, not every worker is a candidate for telecommuting. Employers should assess the employee’s ability to work alone, take initiative and maintain honesty. The ideal telecommuter should be resourceful in dealing with technological issues and be capable of communicating effectively through phone or email.
In cases of disability, employers may need to go further in evaluating an employee’s request to work from home. While the federal courts covering Minnesota, Wisconsin and Illinois have been reluctant to force an employer to allow telecommuting, a recent case from the Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee) found otherwise.
Specifically, the disabled employee’s job required interacting with team members to brainstorm and troubleshoot. After a short trial period, the company decided telecommuting was unsuccessful as it prevented the employee from participating effectively with her team, which required face-to-face meetings. The Sixth Circuit stated that the job may require regular attendance as an essential function of the job, but attendance does not necessarily mean attendance at the employer’s physical location. Although not binding on employers in Minnesota, Wisconsin and Illinois, this decision is a cautionary tale to all employers.
In short, employers should conduct an analysis based on, among other things, the facts and circumstances of the employee’s restrictions along with the requested accommodation and the job duties. Further, if the employer concludes telecommuting is not an option because the position requires regular attendance, it must be able to justify that attendance requires a physical presence in the office.
Employers who allow telecommuting should have a policy in place which covers the various issues that could arise. To start, non-exempt employees must accurately report all time. If an employee works “off the clock,” such as checking email or voicemails, the employer could be liable for those hours worked, including if it results in the employee earning overtime. As such, employers’ policies should address the procedure for working outside of normal work hours and obtaining pre-approval for overtime, as well as accurate timekeeping.
Some telecommuting policies will address technology, while other employers will have a separate agreement with employees who are actually telecommuting. Either way, employers should be clear about:
Regardless of who owns the equipment, employees should be reminded that an employer may monitor any use of company property, which includes networks and software.
Additionally, before allowing an employee to telecommute, employers should set clear expectations as to the employee’s performance, how it will be measured, how employees will communicate with their supervisors and how frequently those communications will occur.
Finally, remind employees that all employment policies and procedures remain applicable unless otherwise agreed upon. This includes the workers’ compensation policy and the timely reporting of injuries. The determination of work-relatedness for injuries occurring while at home during work hours is often very fact-specific. As such, that determination should be left to your workers’ compensation carrier. However, in order to efficiently investigate a claim, the carrier should receive notice as soon as possible.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
Public health insurance exchanges have a head start over private exchanges, but in the coming years, employer and employee awareness will increase, and soon the private options should receive the recognition and utilization they deserve.
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