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SPRING 2007 • Vol. XLVI
- How the Law Protects the Sanctity of the Grave
- TELECOMMUTING: A Possible Alternative for Employers
- The Firm Highlights
- The Firm Departments Work Together


TELECOMMUTING: A Possible Alternative for Employers

by Anthony B. Barton

There may be occasions when a company finds that one of its key employees needs to work from home due to various personal reasons. Telecommuting - working from home or another location that is away from the office - provides an opportunity for employers to retain such valuable workers.

The advantages of telecommuting are numerous. An employee can work full-time even when he/she cannot be at the office every day. This flexibility allows a company to retain an employee who would otherwise have to take another job or part-time work. Working at home reduces lost productivity resulting from weather conditions, minor illness or family issues that would otherwise prevent an employee from coming to the office. An employee also saves commuting time and costs.

There are, however, various disadvantages to telecommuting. Generally, it is more difficult to communicate with the employee and monitor the employee’s activities and performance. In considering the pros and cons of allowing employees to telecommute, companies should review various legal aspects, which should be reflected in a Telecommuting Policy that the company adopts and/or a Telecommuting Agreement with the employee. Such a policy/agreement would address a number of areas affected by telecommuting, including:

Communication. The goal is to provide a means for employees to perform all of their necessary job functions while they are away from the office. Employees working away from the office must be accessible by telephone and e-mail during all normal working hours. Ideally, the employee should have a telephone with voicemail or an answering service so that missed calls are promptly returned. If the employee is away from home, calls should be forwarded to a cell phone. Similarly, the employee must have the ability to send and receive work e-mails from home. If the employee is away from a computer, a Blackberry or other device should be used to receive and respond to e-mails in a prompt manner. The employee must be able to access any office software necessary to complete work assignments. Companies should also provide telecommuting employees with access to technical support services.

Information Security. Providing increased access to company hardware and software presents certain dangers that must be addressed to protect proprietary information and customer data from third parties. The company must establish security protocols to protect such information and implement procedures to train employees and monitor their compliance with such security measures.
Company Property. As the company provides increased access to its hardware and software, the employee manuals and telecommuting agreements should make it clear that the hardware, software and proprietary information are all the property of the company and must be returned to the company upon the termination of the employee’s employment or any earlier demand of the company.

Monitoring. Monitoring an employee’s activities is never easy in the telecommuting context. In cases where an employee is involved in “piece work” - work that can be evaluated in terms of the number and quality of reports - monitoring can be easily facilitated. However, when work is not so simply defined, the supervisor will have to use other measures to gauge performance. It is important, therefore, that the employee always be available. For example, if the employee has to go to the pharmacy, he/she should have calls forwarded to a cell phone. Companies can also incorporate the use of webcams to provide better insight to the employee’s activities. Webcams allow the employee to be visible through video conferencing. The use of webcams has its strengths and weaknesses. The camera would indicate the presence of the employee; however, some employees may react negatively to the “Big Brother” nature of such an arrangement.

Work-Related Injuries. Workers’ compensation requirements can still apply to the telecommuting
situation, unless the worker becomes a true “independent contractor,” as opposed to an employee of the company. When an employee works from home, it can be even more difficult to determine if an injury is a work-related injury and subject to Workers’ Compensation.

Lack of Personal Interaction. A major problem with telecommuting is that it creates a lack of interpersonal relations between workers and with customers of the company. This can be minimized if the telecommuting is limited to 2 or 3 days a week. In some cases, webcams can help because a caller can at least see the face of the person on the other end of the telephone.

Tax Issues. There may be state tax issues that arise from the presence of the employee working from home in a state in which the company did not formerly do business. These issues should be analyzed when setting up a telecommuting policy.

Over the last few decades, the advent of the fax machine, email, pagers, cell phones and other forms of electronic communication has drastically changed the way business is conducted. These technological advances have permitted employees to work outside of the traditional workplace. When set up properly, telecommuting can be a powerful tool to help employers achieve their business goals. The Firm is available to assist clients in developing plans and drafting the appropriate employee manuals and directive provisions, as well as Telecommuting Agreements with the employees involved, in order to maximize the effectiveness of telecommuting and avoid pitfalls in this area.

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