Telecommuting – A Necessary Option But Be Aware of Certain Legal Issues

March 27, 2020

There is no question that telecommuting has become a necessary, and in many cases, the only option for employers to keep their workforce going. In doing so, I want to remind employers of some legal considerations.

The Practicalities

Ordinarily, I would first raise some practical considerations, such as whether the nature of the job lends itself to work outside the office and whether the employee is a good candidate for that type of work. However, these considerations are largely semantics given the lack of choice at this time. Still, if you have an employee who has demonstrated performance-related issues that might impact their ability to work without direct supervision, you must continue to monitor as best you can.

Also, ideally, an employer would have a specific written agreement with any telecommuter that details the parameters and expectations of the relationship, such as whether the work is to be done exclusively from home or whether the employee will be expected to spend a certain number of hours in the workplace;
whether the employee will have clerical support and, if so, how that will work; whether the employee will be expected to make reports to the employer on a regular basis; whether clients or vendors are going to visit the employee in his or her home office; how performance reviews are going to be conducted; what happens when an employee needs a computer or other technical support; and what hours the employee will keep, including whether the employee has to be available to the employer or clients/customers during certain times of day. Again, there is probably a need to be more flexible with regard to many of these. Even so, it is still a good idea to reduce the most basic terms of the arrangement to writing.

Other Legal Considerations

1. Work-Related Injuries

An employee working out of the home is covered by workers’ compensation insurance just as an employee working in an office would be. However, it can be more difficult to determine whether an injury at home arises out of and in the course of work because of the interaction between business and personal activities.

For instance, an employee might slip on ice going to the mailbox and argue the injury is work-related because he was retrieving mail expected from the employer, but if the employee also receives personal mail at the same mailbox, there is a question as to whether the activity was work-related or personal.

There is also potential that injuries which occur while the employee is traveling from the home to the office would be work-related. Although such injuries normally do not arise out of and in the course of employment based on the “coming and going” rule, that analysis is based on the premise that the employee’s primary worksite is the office. If the primary worksite is the home, an injury the employee sustains on the way to the office might be work-related.

Finally, questions as to whether an injury even occurred will be complicated by a lack of witnesses and access to investigative information.

2. Tracking Time Worked

If a nonexempt employee works from home, it may be a challenge to keep accurate track and control of hours worked. An employee must be paid for all time worked, whether authorized or not. Consequently, employers should have a system to ensure all time worked is accurately reported and paid. Ultimately, it is the employer’s burden to disprove any claim for unpaid time, so it is imperative to have a sufficient reporting or tracking process.

3. Regulation of Activity

Most often, an employee telecommuting from home is using a computer remotely connected to the employer’s system. This can create privacy issues for both the employee and employer. As with employees in a traditional workplace, the employer must apply its rules regarding content and use of email to employees working out of the home, including limitations on sexual or other inappropriate content of work-related email communications. Consequently, an employee working from home must be informed that he or she cannot expect privacy in email communications, just as an employee in the workplace cannot. This policy should be described in the employment handbook received by all employees, whether working out of home or in the office.

In addition, the employer may need to take precautions to protect the privacy of the business product. This relates to both trade secrets that the employee may be able to access through the computer as well as confidential records in paper files that may be maintained in the employee’s home office. An employer should require the employee to maintain both the computer and any work-related paperwork in a separate area of the employee’s home and that both are off-limits to family members (i.e., an employee’s children and/or spouse should not be able to access the work computer for personal use).

4. OSHA

All employers are subject to OSHA ’s General Duty Clause, which requires employers to “furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

With regard to home-based workers, OSHA has generally not conducted inspections of employees’ home offices and has not expected employers to inspect the home offices of their employees. If OSHA receives a complaint about a home office, the complainant will be advised of OSHA’s policy. If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee. Employers are responsible for home worksites for hazards caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee’s home. However, all employers are still responsible to keep appropriate records regarding work injuries.

5. Termination

Employees working from home often are given office equipment belonging to the employer, which can include computers, telephones, fax machines, and office furniture. Upon termination, the employer will want to recover that equipment. However, the options for doing so are limited. The employer cannot enter the employee’s house without permission and remove the equipment. If proof of ownership can be shown, it might be possible to accompany police to the employee’s home and recover it under those circumstances. Employers cannot withhold the employee’s last paycheck until the equipment is returned. See 26 M.R.S.A. §626 (“An employee leaving employment must be paid in full within a reasonable time after demand at the office of the employer where payrolls are kept and wages are paid,… ”). In addition, the law prohibits an employer from reducing the employee’s final check by the value of the equipment, unless the employee agreed in writing that the use of the equipment was a loan which had to be repaid upon termination. See 26 M.R.S.A. §629 (deduction can be made to employee’s pay for a loan or debt authorized by employee in writing).

This information is accurate as of March 27, 2020, and is subject to change based on any new legislation.

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell
207-947-4501