The following article was contributed by Wu Castillo, P.C. – A law firm providing advice and representation for California employers.
So your employees want to work from home? Consider these top 5 components for an effective telecommuting policy. In early 2013, Yahoo!’s CEO, Marissa Mayer, announced that Yahoo!, starting in June 2013, would no longer allow employees to telecommute. Back then, Yahoo! had approximately 500 employees who routinely worked off-site/at home, and who were physically disconnected from the other 12,000 Yahoo! employees.
At the time, some commentators opined that Mayer’s decree was a step backwards, and working moms in particular felt betrayed by Mayer (who was a new mother). Others opined that Yahoo! was doing the right thing and this change in policy would improve Yahoo!’s productivity and bottom line. Now, in 2016, while we can look back and see how/if the no-telecommuting policy affected Yahoo!, the more interesting question for most employers (and employees) is: did Yahoo!’s new policy violate any employment laws?
The short answer is: No. Yahoo!, just like any other employer, is free to place requirements on where its employees must perform work. This policy was announced with plenty of advanced notice (more than three months), and it applies across the board to all Yahoo! employees. Thus, on its face, the policy change was legal.
However, there are creative plaintiff’s attorneys, and we noted in 2013 at least one early potential employment-law related vulnerability to the then-new policy. Specifically, employees who telecommuted as a reasonable accommodation for a disability or medical condition should still have been allowed to telecommute if providing this type of accommodation did not pose an undue burden on Yahoo! Indeed, it would have been very challenging for Yahoo! to have claimed an “undue burden,” given the company’s size and revenue. Admittedly, this scenario may have pertained to only a few employees, but regardless, Yahoo! hopefully considered this and other exceptions to the no-working-from-home policy.
TELECOMMUTING POLICY BASICS
In contrast to the Yahoo! policy, many companies encourage, or at least allow, telecommuting. Any employer that does so, however, must be sure to have a clear and comprehensive policy on telecommuting. Some of the issues the telecommuting policy should address (or, at the very least, the employer should be ready to handle), include the following:
- Discrimination: Employers need to be consistent when determining what positions are eligible for telecommuting. Employers should not make decisions based on who the employee is, but rather on what the position requires. Decisions should be made on objective criteria, and inconsistencies must be explained by legitimate business justification, otherwise the employer could face discrimination claims.
- Wage and Hour Issues: The company should require employees to keep records of their work time. This is particularly true for non-exempt employees who may be entitled to meal and rest breaks, and overtime. Just because employees are working from home, some formalities of the traditional workplace must remain intact – like recording work hours and breaks.
- Confidentiality: Companies would be wise to revisit and strengthen employee confidentiality policies since telecommuters, by the very definition, are accessing and using company information (including confidential and perhaps trade secret information) remotely, without managers around.
- Workspace Conditions: Here the issues range from OSHA requirements to workers’ compensation issues. Companies need to be aware of whether the telecommuting employee has a safe and dedicated workspace, and how to handle workplace injuries that a telecommuter suffers. Indeed, because telecommuters work in isolation, typically no witnesses will be on hand to verify a telecommuting employee’s claim of work-related injury. Employers may also consider requiring telecommuters to allow the employer to inspect the workspace periodically.
- Expense Reimbursement: There are a lot of issues here. For example, if it is mandatory for employees to use their personal mobile phones for work, the employees should receive a reasonable reimbursement for that expense. Not only must employers determine how to handle this reimbursement for mobile phones, but employers should also pre-determine how they will handle at-home internet access/wi-fi costs, computer/printer costs, and the like. Unfortunately, there is no one-size-fits-all solution that suits every employer.
What do you think? Does your company have a clear and complete telecommuting policy?
DISCLAIMER: Information provided on this website is not legal advice, and it does not create an attorney-client relationship with Wu Castillo, P.C., nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation.