| Articles | The
SPRING 2007 • Vol. XLVI
- How the Law Protects the Sanctity
of the Grave
- TELECOMMUTING: A Possible Alternative
- 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
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
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