August 2015 Bar Bulletin
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August 2015 Bar Bulletin

Turn off the TV: Effectively Working at Home

By Karen Sutherland

 

Does the idea of working at home appeal to you? Can you successfully avoid distractions such as binge-watching your favorite programs? If you are an employer, would telecommuting be effective for your employees?

Telecommuting can be beneficial to both employers and employees, but there are several things both parties should consider before embarking on a work-at-home or work-offsite activity.

Is the position suitable for telecommuting? If an employer allows telecommuting for one employee, other employees will probably want to telecommute, too. Positions such as receptionist, file clerk and positions involving physical labor are not suitable for telecommuting; suitability for other positions (such as lawyer or supervisor) may depend on the nature of the work.

A thoughtful evaluation of each position is important because arbitrary distinctions that are not job-related can lead to claims of disparate treatment on the basis of race, age, religion, disability or other protected status if some employees are allowed to telecommute and not others. For example, allowing one employee to telecommute, but denying another employee with a disability the opportunity to telecommute as a reasonable accommodation may lead to a claim under the Americans with Disabilities Act or the Washington Laws against Discrimination.

An employment lawyer with experience in this area can assist the employer in drafting a policy and/or individual telecommuting agreements, or at least talk through potential pitfalls.

Is the employee suitable for telecommuting? Some employers establish minimum qualifications for employees to be eligible to telecommute, such as having been in a position for a specified minimum period of time and having satisfactory or better performance evaluations. Additionally, the ability to work independently without being distracted by television and other electronic devices is necessary for successful telecommuting.

Where will the work take place? Will the employees be limited to working in a specified location in their homes or will they be allowed to telecommute from any location, such as a coffee shop or next to the pool? It is easier to preserve confidentiality, to determine when an employee is working and to assure a safe workplace consistent with L&I regulations if the workspace is a defined space.

When will the work take place? Setting specific work hours ensures greater access to and collaboration with other workers, enables the employer to determine whether an injury occurs on the job, and to track hours worked for employees who are covered by the Fair Labor Standards Act. However, the employee may want more flexibility to attend to other, personal obligations or to pursue personal interests.

What level of connectivity during the workday is expected? Some of the options include being available the entire workday by phone, email and text; having set "check-in" times; being logged into the employer's computer network remotely; using shared calendars; uploading documents into a file-sharing program to work on them collaboratively; and/or participating in meetings by videoconference. There are even robots that can be located in the workplace that can transmit information to and from the offsite employee to enable real-time remote interaction.

How will work activities be documented? Employers often wonder whether employees who are working remotely are being productive and actually working their scheduled hours. These concerns can be addressed by providing clear expectations for what tasks will be accomplished each day or on a project basis; using logs or timesheets describing work performed each day; using project management software such as Basecamp to show progress; using a camera to monitor the employee's activities (not favored by most employees); and/or providing information via email or text when milestones are achieved.

What are the expectations for face time in the office? Is the telecommuter going to attend office meetings in person or meet with clients in person? What workspace will be available to the telecommuter on days he or she is in the office?

Who provides the technology? Is the technology that is going to be used to telecommute provided by the employee under the employer's "bring your own device" policy or will it be furnished by the employer? Will the technology be dedicated solely to the employee's work or will the employee's personal files and programs be located on the same device? Will the technology be shared by other family members or other people who live in the household?

How do you keep track of files? If physical files are removed from the workplace to be used by the telecommuter, what processes will be put into place to ensure they are not lost or misplaced and that they are accessible to others who may need them?

How do you maintain confidentiality of confidential data? Different types of data require different levels of confidentiality. Medical records, protected health information, student records, employee records and attorney-client privileged communications all require different levels of protection. Developing a policy in advance to preserve the confidentiality of these records if they are being physically removed or accessed electronically from an offsite location can help prevent data breach issues, and in some cases (e.g., HIPAA) is required by law.

Is personal multitasking acceptable? Does the employee have other commitments during the workday, such as child care or care for another member of the household? Does the employee freelance or have a second job? If so, there should be a clear understanding regarding the degree to which these other responsibilities can be performed during work time.

Is collective bargaining required? Changing the terms and conditions of a bargaining unit member's work is a mandatory subject of bargaining, so if the affected employees are members of a union, the union should be given notice and an opportunity to bargain any telecommuting policy or practice before it is implemented, even if the employee requests it.

Consider a trial period. Before selling the employee's furniture and subletting her office or cubicle, the employer may want to establish a limited telecommuting trial period to evaluate whether telecommuting will work for both parties.

Karen Sutherland is the chair of the Employment and Labor Law Practice Group at Ogden Murphy Wallace, PLLC, and rarely telecommutes except for writing Bar Talk at home on the weekends. She also has not had a TV since 1989. Sutherland can be reached at ksutherland@omwlaw.com. This article is a brief overview and is not legal advice, and should not be relied on for any purpose.

 

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