August 3, 2020

Volume X, Number 216

August 03, 2020

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Part 2: Telecommuting — Employees Enter the Sharing Economy?

Last week we began delving into some of the many issues that the rise of telecommuting has caused employers to confront, ranging from jurisdictional questions to how to determine when remote employees are actually working and how to compensate them appropriately. With telecommuting employees, questions arise not only with how to track their normal working activities, but also whether other activities traditionally understood as non-compensable become compensable time because of the different nature of the employee’s job.

Changes in Worksite May Mean Changes in What Qualifies as “Work”

Ordinarily, an employer is not required to compensate an employee for time spent while traveling to or from the principal work site. However, if a remote worker is required to visit the main office for, say, a group meeting, an evaluation, training, etc., the travel time will likely have to be paid as compensable time. Similarly, a remote worker, who, as part of her duties, travels from her work site (her home) to another location, will be “on the clock” and must be paid.

Although some employees may be attracted to telecommuting because of the perceived freedom to work when it is convenient, even if that might be in the middle of the night, such unorthodox work patterns may not fit the employer’s needs for all jobs as it may need the employee to be available for consultation or quick responses during regular business hours. To avoid disputes and unfulfilled expectations, such requirements need be clearly spelled out in the policy or individual agreement with the employee. Similarly, it should be clear when, and under what circumstances, an employee may take a leave of absence, or even individual days off.

Labor, Workplace Safety, Privacy and Other Concerns

Working remotely also requires that we revisit traditional concepts of union organizing and collective bargaining. When a union seeks to organize a group of employees, will telecommuting employees have a sufficient “community of interest” with their co-employees to be included in the voting unit and, if so, how will the employer and the union be permitted to make contact with them during an election campaign? If there is already an existing union contract and one or more employees wish to leave the regular worksite and work at home, does the employer have to bargain with the union? Do those employees even remain in the bargaining unit after they have left the main worksite? Because there have been few cases decided by the National Labor Relations Board that address these issues and union contracts are often silent, there are many open issues. Employers will need careful guidance as they confront these novel problems.

Some of the thorniest issues relate to the physical workplace. Ideally, the employee’s home should have a “private” workspace dedicated to performance of the work duties which should be inspected by the employer’s IT/ergonomic specialists to determine if it is appropriate. (A policy should make clear the employer has that right of inspection.) After the initial inspection, periodic follow-up inspections, whether real or “virtual,” should follow to ensure continuing compliance. Under Occupational Safety & Health Administration (OSHA) and workers compensation regulations, this “home office’ is considered part of the employer’s “workplace” and agencies will enforce their rules. Moreover, the employer could be liable to third parties who are injured as result of workplace activities or employer-supplied equipment.

Privacy and confidentiality concerns are among the more difficult to control. The employer must ensure that confidential information is not disclosed and should work with its IT specialists to develop processes and practices that guard against unauthorized breaches of its policies. This area requires particular care and creativity, especially in industries where confidentiality is paramount (e.g., health care, finance, legal, etc.).

The employer must also determine who should own the equipment that makes telecommuting possible and think through who will bear the risk if it is lost, stolen or damaged. This leads into the topic of adequate insurance and the need to obtain skilled guidance from loss prevention specialists.

Developing a Telecommuting Policy

As technology advances continue to redefine traditional notions of work and create multitudes of challenges for employers, what becomes clear is that developing a sound, well-considered telecommuting policy requires consultation with an unusually diverse group of specialists and the creation of a well-thought-out policy which will guide the company and the employees. That challenge cannot be avoided for many employers, because it is clear that telecommuting will play an increasingly significant role in the “workplace” and many employers will feel that, to stay competitive, they have no choice but to grasp this nettle.

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 327


About this Author

Gregory W. McClune, Foley Lardner, NLRB Representation Lawyer,
Retired Partner

Gregory W. McClune is a partner and litigation lawyer with Foley & Lardner LLP. A member and former chair of the firm's Labor and Employment Practice, Mr. McClune advises a wide variety of clients in virtually every aspect of labor and employment. He is also a member of the Health Care Industry Team.

Mr. McClune has extensive experience representing employers and systems in NLRB and other union-related matters, including union negotiations, arbitrations and grievances; general advice on union contracts; strike avoidance and preparation...