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How Telecommuting Affects Employment Law

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Telecommuting increased close to 80 percent just between 2005 and 2012, and an estimated 30 million people now report working from home at least once per week. App Developer Magazine featured an interesting article recently on how dynamics in the workplace are changing as more and more people are telecommuting, and how this changes employment law as it relates to employer-employee relationships and established legal policies.

In fact, there are legal benefits to having some salaried employees telecommuting instead of working out of the office, however, it’s also important to realize that allowing for telecommuting does change certain legal policies for employers.

Security Issues

As more and more employees are working remotely, in all likelihood, many of them are going to be accessing work networks from their home computers. It is very important that if a telecommuting employee does access the network remotely that there is an established security system protecting the company’s files and sensitive information, including the appropriate passwords, encryption, and network firewalls. As of 2014, the average cost of a data breach reached close to $6 million.

Confidentiality

It is also important that all telecommuting employees have signed a confidentiality and/or non-disclosure agreement in order to ensure that the company’s privacy has been maintained and that, if not, there is a legal recourse to bring an action against the employee and any other offending parties. In addition, many companies ensure that they establish network access for the telecommuting employee, but do not ensure that, in turn, they can retrieve files from the telecommuting employee in case anything should happen. Make sure that you are able to do this; an easy way might be to have a policy requiring that the employee saves any and all work to the same network device (such as the company server) instead of the individual computer hard drive of the computer they are working on.

What about Non-Exempt Employees?

While most telecommuting employees are salaried and exempt from overtime (because they are not subject to overtime and thus there is less concern about reporting working hours), if you do have non-exempt employees work from home, ensure that here is a reliable way to keep track of worked hours and that you have a policy in place beforehand that restricts the number of hours they can work in general.

Liability and Workers’ Compensation

While there are always policies pertaining to injuries in the workplace, ensure that there is a similar policy for any work-related injuries for those working from home.

Discrimination

Interestingly, having employees work remotely decreases the potential for discrimination because, arguably, the employee is more likely to be judged based on work product rather than potentially discriminatory factors. However, at the same time, employers need to ensure that having an employee work remotely cannot be legally interpreted as being discriminatory in and of itself (i.e. the potential that the employer is specifically only having that employee telecommute because they do not want them in the office).

It is also important to keep in mind that there have been instances where an employee claimed that failure to allow them to telecommute at least part-time constituted failure to provide disabled accommodation under the Americans with Disabilities Act.

Contact Experienced Employment Law Attorneys

Goldman & Ehrlich is known for providing excellent legal representation to Chicago-area employers. If you need assistance, contact us today online or call 312-332-6733 and we’ll get started helping you with any employment law issues.