Almost all labor laws predate telecommuting. But now, the plight of millions of remote workers are starting to influence what happens in the legislatures. An infographic explains more.
Before we dive into the image, little background for you. The word “telecommuting” first appeared in print in 1976. But even in the 1980s, JCPenney was hiring home-based call center agents to take catalog orders. Amendments made to the Clean Air Act in 1990 specified that companies had the option to meet federal requirements through telecommuting programs. The idea of working remotely has been influencing the law for a long time.
There’s a ton to read through in this image, provided courtesy of the Champlain College’s Masters of Law degree program. In addition to the growth in popularity of working remotely, they highlight some other key issues that relate to the law.
Worker Privacy and Employee Confidentiality
Let’s begin with a quick reminder. If you’re an employee, you have no privacy rights while at work. This shouldn’t be a surprise to anyone who has ever heard the words “this call may be monitored for quality-assurance purposes.” Forget those last three words—the company can monitor any aspect of employee behavior at work for any reason they want.
Things get a little stickier when the workplace is also the home (or the coffee shop) and the equipment you’re using is your own, instead of issued by the business. Working remotely carries the risk that you’ll divulge confidential information, either by accident or on purpose. What if your home computer gets hacked or crashes? If you’re a teleworker, you probably need to sign non-disclosure agreements as well as take preventative measures that protect confidential and propriety information.
That doesn’t mean you should be afraid of using your own cellphone or your own laptop. Rather, be clear on policy and liability. Know where the lines of responsibility begin and end. After all, you represent your employer and they want you to help them succeed. That can’t happen if there’s a serious disconnect with regard to privacy and confidentiality.
Worker Status: Contractor or Employee? Exempt or Non-Exempt?
One of the messiest issues in Federal employment law deals with the word “employment.” To quote the IRS:
It is critical that business owners correctly determine whether the individuals providing services are employees or independent contractors.
The IRS goes on to say that “a worker is an employee when the business has the right to direct and control the worker”, including “when and where to do the work.” That makes it sound like telecommuters are contractors, but not employees. But then again, the phrase that the “business has the right” to tell the worker when and where to work, even if they don’t exercise the work. It’s complicated.
Plus: employees who have a right to overtime pay under the Fair Labor Standards Act are known as non-exempt employees. While it’s less likely for this category of employees to work from home as compared with salaried employees, if they do, employers are obligated to pay any unexpected overtime wages. That can be tough to track since these employees aren’t at the job site.
If you slip and fall in the warehouse, the company is probably responsible. If you slip and fall in your kitchen while working remotely, who is responsible? A clear policy is needed if you’re an employee. And even if the employee was negligent in a particular situation, the business needs to specify what they cover and what they don’t. Safe workplace practices matter—even if the workplace is your couch.
Sometimes people think of telecommuting as a benefit, which it isn’t. But if employees do telecommute, the business must be careful not to show any form of bias. For example, a company that says “all moms can work from home” is discriminating against people who aren’t moms.
If you’re an employer with employees, you should make sure your telecommuting policy is thorough and covers all the bases. You can ask telecommuting employees to sign on and commit to questions regarding their work schedule, resources used to work remotely, injuries that are associated with the work environment, and setting up a designated and safe workplace.
If you’re a business with contractors, you’ve got more leeway. But remember, if you’re aware of unsafe or illegal practices by your vendors, you could be culpable. And, just calling your “employees” by the word “contractors” isn’t enough. You have to meet the tests defined by the IRS.
The virtual workplace is changing constantly and it is essential to change with the times. Keep an eye on the news, watch the trends, and talk to your attorney. And if it makes sense to do so, feel free to do that work from the comfort of your own home.