Telecommuting: Legal Risks and Solutions

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Utah County Employment Law Seminar
Wednesday, August 28, 2019
PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S...

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Why Offer Telecommuting
 Sustainability/green policies (reduce driving)
 Increased productivity (data supports)
 Quie...

3
Why Offer Telecommuting
 Improved balance of work and family life
 Recruitment and retention especially with more wome...

4
Why Not Offer Telecommuting
 Too quiet (no one at work and no one at home)
 Company culture—spending time together
 L...

5
Prevalence
 A study of Work-Life Balance And The Economics Of
Workplace Flexibility released by the Council of Economic...

6
Prevalence
 2013 Pricewaterhouse Coopers Study
o 64% of Millennials would like to work from home at least
occasionally
...

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Telecommuting Legal Issue
 Wage and Hour
 Safety
 Posters
 Confidentiality
 Multiple state laws apply
 Taxes
 Ins...

8
Telecommuting Legal Issues: Wage and Hour
 FLSA applies to all employees regardless of where they work
 For non-exempt...

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 Telecommuting arrangements generally do not create
compliance issues for exempt employees because,
assuming they are p...

10
Telecommuting Legal Issues: Wage and Hour
 The FLSA does not define the term “work”
 The DOL regulations address whet...

11
Telecommuting Legal Issues: Wage and Hour
 General rule: it is the employer’s obligation to manage its
employees to en...

12
Telecommuting Legal Issues: Wage and Hour
 Measures that help control off the clock work:
o Having a policy prohibitin...

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Telecommuting Legal Issues: Wage and Hour
 Travel time – what is travel time when you work at home?
 Traveling to you...

14
Telecommuting Legal Issues: Safety
 OSHA requires employers to provide a safe work place,
free from hazards that could...

15
Telecommuting Legal Issues: Safety
 Safety/Workers Compensation
o Employer must take reasonable steps to ensure safe h...

16
Telecommuting Legal Issues: Safety
 From a worker’s compensation point of view, employers remain liable
for workers’ i...

17
Telecommuting Legal Issues: Insurance
 Employer should review its existing insurance policies to be
certain it is adeq...

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Telecommuting Legal Issues: Posters
 State and federal laws require employers to post certain notices for
employees in...

19
Telecommuting Legal Issues: Confidentiality
 Confidentiality when employee works at home or remotely
o BYOD (Bring You...

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Telecommuting Legal Issues: Confidentiality
 BYOD Policy
o What devices are permitted for work use
o What support will...

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Telecommuting Legal Issues: Confidentiality
 Some jobs have extra concerns
o HIPAA documents
o Financial information
o...

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Telecommuting Legal Issues: Multiple states
 Working in multiple states
o Tax issues
o Things can get tricky when, say...

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Telecommuting Legal Issues: Multiple states
 In general, employees are covered by the labor laws of the
state in which...

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Telecommuting Legal Issues: Taxes
 Tax laws regarding home office deductions for the employee
are complex and somewhat...

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Telecommuting Legal Issues: Terminating a Telecommuter
 “Security will escort you out”
o It is one thing to change a p...

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Legal Issues: Discrimination
 Certain employees may claim that they were discriminated
against by not being allowed to...

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Legal Issues: Discrimination
 Lack of consistency
o Leads to discrimination claims
 Solution
o Written policy
o Legit...

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Scenarios
 Velez v. Novartis Pharmaceuticals, S.D. N.Y. 2010)—
class action alleging gender discrimination and pregnan...

29
Legal Issues: ADA
 Reasonable accommodate under ADA
o A physical or mental impairment that substantially limits one or...

30
Legal Issues: ADA
 The ADA requires reasonable accommodation of disabled employees
o Working from home may be such a r...

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Legal Issues: ADA
 EEOC guidance
o Employers aren’t required to have a telecommuting policy but
• If they have one, th...

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Legal Issues: ADA
 Is physical attendance at worksite an essential function of
the job?
o Written job description
o Am...

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Legal Issues: ADA
 Considerations
o Some jobs cannot be performed off site—food servers, cashiers,
truck drivers
o Doe...

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Legal Issues: ADA
 Pauling v. Gates (E.D. Va. May 6, 2011) – work at home
was not reasonable where the employer requir...

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Legal Issues: ADA
 Woodruff v. Peters (D.C. Cir. 2007) – held that working at
home could be a possible accommodation f...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
o District Court (E.D. MI): granted summary judgment to Ford on
failure ...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
o Employee was a retail steel buyer who suffered from severe IBS
o Her j...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 First supervisor adjusted schedule:
o Allowed two trial opportunities ...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Employee had excessive absence and tardiness
 Absenteeism harmed coll...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Employee asked to telecommute up to 4 days/week in 2009:
o Doctor said...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Ford denied request because:
o Job required “regular interactions” wit...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Ford identified circumstances where telecommuting could
work: (1) Pred...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Well-established general rule that regular attendance at
site is essen...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 EEOC’s own regulations support general rule, despite
EEOC’s position i...

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Legal Issues: ADA
 EEOC v. Ford Motor Company
 Why did Ford win?
o Patience—actions spanned multiple years
o Thoughtf...

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Legal Issues: ADA
 Doak v. Johnson, 798 F.3d 1096 (D.C. Cir. 8/18/2015) –
Employer denied Employee’s request to work a...

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Legal Issues: ADA
 Fischer v. Pepper Hamilton LLP, (E.D.Pa. 2016) –
Employer terminated Employee for irregular attenda...

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Legal Issues: ADA
 5 questions to ask when considering telecommuting as an
accommodation:
1. What are essential functi...

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Telecommuting Legal Issues: Agreement
 One way to address the many issues with telecommuting is to have a
telecommutin...

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Telecommuting Legal Issues: Agreement
 Telecommuting agreement (cont.)
o Privacy policies, access to computers, and mo...

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Telecommuting Legal Issues: Agreement
 Telecommuting agreement (cont.)
o Employer is not liable for injuries to the te...

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Telecommuting Legal Issues: Agreement
 Telecommuting agreement (cont.)
o The telecommuting arrangement (as well as the...

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Telecommuting Legal Issues: Agreement
 Telecommuting agreement (cont.)
o A specific agreement by the employee to be su...

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Legal Issues
 Plan a strategy
o Which departments can successfully allow telecommuting
o Which employees can successfu...

55
Thank You
 Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com

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