Telecommuting, e-work and Ewoks

Carrying out work responsibilities from home, a clients' facilities, an employer-owned satellite office, or even from a hotel room while communicating with the employers' main office via computer and phone is often referred to as telecommuting, e-commuting, and e-work. (A note here: do not confuse e-work with an Ewok, which is a species of teddy-bear-like hunter-gatherers that inhabit the forest moon of Endor.)

Now that you know what telecommuting is, let's see if you know the answers to the following questions:

* Can you require your employee working at home to designate a workspace within the home wherein he/she will carry out telecommuting activities?

* Can you make an on-site visit to the remote work location to determine if the site is safe and free from hazards, and if necessary, to retrieve company owned equipment?

* Can you require your employee to conform to a set work schedule while working from home?

* Can you require the employee be available by telephone and email during the scheduled work hours and that he/she be available for in-person staff meetings at the company site?

* During work hours, and while performing work functions in the designated remote work area at the home, your employee trips over a box and spraining his/her ankle.

* Are you liable for the injury suffered at the home?

* Do you have a responsibility to monitor the safety of the work space?

* Is his/her injury covered by workers' compensation?

And the bonus question:

* Can an Ewok e-work?

Our work world is changing rapidly. Both employers and employees are seeking more flexibility in work schedules and locations. We have recently seen a remarkable rise in the use of telecommuting as a means of reducing overhead costs and increasing productivity for employers, and as a means of reducing or even eliminating lengthy commutes to work for employees.

The wonderful world of telecommuting, however, can be fraught with potential problems and requires careful planning and consideration prior to its implementation. This article outlines some issues worthy of your consideration.

Written policies and procedures and use of written telecommuting agreements

It is important that the employer develop a written policy that is distributed to its employees. The policy should at a minimum include the following:

* The duration of the agreement

* The work schedule

* How leave is to be requested and approved

* How routine communication between the employee, supervisor, and customers will be handled

* Employee's performance plan/expectations

* A list of equipment and/or supplies that will be used, and who is responsible for providing and maintaining them

* Any applicable data security procedures

* Safety requirements

* A requirement that employees permit supervisor access to the alternate work location during normal work hours.

Wage and hour laws

The challenge here is primarily one of monitoring the teleworker and the hours he or she is working. Procedures must be in place to document the work hours of employees, in particular, ensuring compliance with the Fair Labor Standards Act, as well as state and local laws governing minimum wage, overtime pay and scheduled breaks. The total number of hours that employees are expected to work should not change, regardless of work location. Your supervisors should receive training to handle the unique problems associated with managing and monitoring the performance of employees who are out of sight.

Use of leave

Your policy should clearly state that telecommuting is not intended to be used in place of any type of leave, including sick leave, personal leave, family medical leave, or workers' compensation leave.

Workers' Compensation liability

The employee's home workspace will likely be considered an extension of the company's workspace. Therefore the employer may be liable for job-related injuries or illnesses that occur during the employees' established work hours and while working in their alternative work locations. Your policy should expressly state that the employee is to maintain a safe workspace, free from hazards to the employee and equipment. The employer should consider requiring the employee to submit a couple of photos of the home workspace to management as part of the implementation and approval process.

Attendance at meetings

Your policy should provide that supervisors may require employees to report to a central workplace as needed for work-related meetings or other events, or may require employees to meet with their supervisors in the alternate work locations as needed to discuss work progress or other work related issues.

Equipment and materials

Your policy should expressly state that the employer will provide equipment and materials needed by employees to effectively perform their duties. Under appropriate circumstances the agreements can specify that employees may be authorized to use their own equipment. To the extent the employer is providing equipment, the policies should state that it is to be used only by the authorized employee, that the employee is responsible for protecting the equipment from theft, damage and unauthorized use. The employee must make the equipment available for maintenance, repair, and if necessary, recovery, subject to reasonable notice to the employee.

In closing, and in case you were wondering about the answer to the bonus question: Yes, I know several Ewoks who e-work. However installing the equipment in their tree houses has been problematic.

On a more serious note, telecommuting certainly can offer benefits to an employer and employees but the terms and conditions need to be negotiated ahead of time to minimize confusion and liability issues.

David McElhinney is a partner in Lewis and Roca's Northern Nevada office in the commercial litigation and labor and employment practice groups. Contact him DMcElhinney@lrlaw.com or by calling (775) 321-3414.