A paramount concern of employers that permit telecommuting must be securing its customer and employee data. This is particularly so for companies operating in industries in which employees frequently work with confidential data – such as healthcare, financial and retail industries. Indeed, according to recent report by the Wall Street Journal about a survey by the Association for Corporate Counsel, “employee error” turns out to be the most common reason for data breaches. An example of the kind of employee error mentioned in the survey – “accidently sending an email with sensitive information to someone outside the company” – is something just about all of us have heard about or experienced in our own organizations.

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Telecommuting also has implications for wage and hour compliance. While surveys reveal that the majority of telecommuters are classified as exempt from federal and state wage and hour laws, many are (or should properly be) classified as non-exempt, meaning that they are eligible for overtime for all hours worked beyond 40 in a workweek. Studies also show that remote employees may actually work more hours per week on average than their counterparts working in the office. A failure to ensure that telecommuters are paid for all hours worked, including time and one half for overtime hours, can lead to class action claims and very steep damages.

Ensuring that a remote employee accurately reports her start time, end time, and breaks is, of course, considerably more difficult when she is working remotely. For that reason, employers should establish policies for non-exempt telecommuters, which require them to (a) use company-provided software to accurately track their time, and (b) sign acknowledgements, on a regular basis, attesting to their compliance with the company’s time-tracking policies. Employers should also develop policies that clearly explain to all employees – including managers – that telecommuters are, like employees in the employer’s home office, subject to state and federal wage and hour laws and that they are strictly prohibited from working “off the clock”. Put another way, employers must ensure that their employees are not under the misimpression that telecommuters are “on-call” at all times. Ideally, non-exempt telecommuters should be permitted to

work overtime only with prior written approval from a manager. Although employees must be paid for all time worked regardless of whether it was recorded or authorized, the employee can, and should, be subject to disciplinary action for engaging in “off the clock” work.

Managers and supervisors of telecommuters must also be trained to understand and enforce applicable wage and hour laws. Even if a telecommuter fails properly to record his hours worked, the employer can still be held liable if a manager knew, or should have known, that the employee worked the additional hours. If a manager is receiving emails, texts or instant messages from a telecommuter outside of regular working hours, that manager must ensure that the time is being recorded. In sum, an employer cannot knowingly permit work to occur without compensating for it and/or putting an end to it.

Many states mandate meal and rest breaks. This time must be uninterrupted with no work. The penalties for non-compliance with meal and rest break laws can be steep and, once again, can give rise to costly class action lawsuits. It is difficult enough to ensure that employees working in the same worksite as their manager are taking their mandatory breaks – the concern is compounded for remote workers. While imperfect, amongst other steps, employers must train telecommuters and their managers on the requirements of the meal and rest break laws and have remote workers sign periodic acknowledgements that they are taking the required breaks. If a supervisor suspects that an employee is not taking his mandated breaks, the supervisor must proactively take steps to address it.

Pay for travel time is another issue for employers with telecommuting workforces to consider. As a general matter, employers are not required to pay employees for time spent commuting to or from their regular place of work. However, when a telecommuter’s regular place of work is her home, time the employee spends traveling to or from the workplace (before or during the workday) to attend meetings or to retrieve physical files may be compensable.

Employers must also bear in mind that, with limited exception, exempt employees must be paid for any work week in which they perform any work at all. To save costs, some employers have instituted mandatory unpaid week-long furloughs. If an exempt employee remotely performs any work that work week, including checking e-mails on a smart phone, she is entitled to her pay for the entire week.

Another area of concern for employers who permit telecommuting is OSHA-compliance. For example, how do employers ensure that their employees’ new work environments – their homes – are OSHA-compliant? Significantly, OSHA does not hold employers liable for, and does not obligate them to inspect, their employees’ home offices. The one exception to this general policy is situations where the employer provides the employee, or requires the employee to use, materials, equipment, or work processes (collectively “materials”) that cause the hazard at issue. Employers should therefore carefully consider what materials they will provide to or require employees to use and clearly distinguish, in their telecommuting policies, those materials from other unrelated materials their employees may have in their homes. Employers should also train employees on how to safely use any materials the company provides or requires.

Telecommuting also broadens the workers’ compensation landscape. Courts have, for example, granted workers’ compensation benefits to the family of an employee who died of a blood clot after sitting at her home office computer for long periods of time and to a saleswoman who tripped over her dog while carrying fabric samples from her home to her car. Employers can mitigate their liability exposure in such scenarios by entering into written agreements with telecommuters that clearly and narrowly define which areas of the telecommuters’ home constitute his or her “home office.” Employers can also retain the services of remote workplace consultants who, for a one-time fee, will help telecommuters set up their home offices and examine and document the initial condition of those offices. Doing so may enable employers to preemptively identify areas of risk and can serve as proof, should the employee later file a workers’ compensation claim, that the employer did its part to provide a safe workspace.

Any time an employer offers a benefit to some, but not all, employees, there are risks for discrimination claims. An employee denied the opportunity to telecommute may believe that it was based upon her membership in a protected class under applicable state or federal discrimination laws. Protected classes can include gender, age, disability, nationality, religion, race, color, sexual orientation, etc. To decrease the likelihood of discrimination claims arising from a denial of a request to telecommute, employers should analyze what

work within its organization can be performed remotely and should create criteria to be applied by managers in making these determinations. Employers will also want to consider the traits of employees who are well-suited for telecommuting, such as reliability, ability to work independently, good communication skills, and high performance. It should be clear in written policies that the decision whether to permit a remote working arrangement is left to the sole discretion of management and, just as with the employment relationship, a telecommuting arrangement may be terminated by the company at any time. While there is discretion, managers should nonetheless strive to apply the telecommuting criteria uniformly and document their decisions.

Increasingly, with advances in technology, a telecommuting arrangement may be a reasonable accommodation under the Americans with Disabilities Act. This is so even if the company does not have a telecommuting program or if the employee or his job does not precisely meet the criteria for telecommuting developed by the employer. A company must not reject a request for telecommuting out of hand, but, rather, should view the request as triggering the good faith interactive process required by the ADA. However, it is well-settled that a reasonable accommodation does not include the elimination of essential job duties. Thus, a critical issue in evaluating telecommuting as a reasonable accommodation is whether the essential duties of the position can be performed remotely. In arriving at that determination, an employer should consider the primary purpose of the job and the written job description, as well as the actual day-today duties performed by the employee.

It was feared by many employers that a 2014 decision by the Sixth Circuit in EEOC v. Ford Motor Co., 752 F.3d 634 (6^th Cir. 2014), which offered a very broad interpretation of telecommuting as a reasonable accommodation, would open the floodgates for telecommuting requests and lead to more claims under the ADA. However, in EEOC v. Ford Motor Co., 782 F.3d 753 (6^th Cir. 2015), an en banc panel of the Sixth Circuit reversed the prior decision of the three-judge panel. The plaintiff in that case, a buyer for Ford Motor Company suffering from irritable bowel syndrome, argued that she should be entitled to telecommute a few days per week because in-person attendance was, in her view, not an essential function of her job. Among other arguments, she pointed out that her employer had

allowed similar employees to telecommute on occasion, that she could perform nearly all of her duties remotely, and that the job description stated that workers might be allowed to telecommute when appropriate. The en banc panel rejected those arguments— relying primarily on the employer’s judgment and the consequences of not requiring the plaintiff to attend work in the office. It held as a matter of law that in-person attendance was an essential function of the plaintiff’s job. While this decision is highly favorable to employers, it is still necessary for employers to assess any and all requests for reasonable accommodation on a case-by-case basis considering all factors.

Employers may believe that because an employee works remotely out of state, the employee is not eligible for the protections of the Family and Medical Leave Act (FMLA) because there are not 50 or more employees within a 75-mile radius. However, pursuant to FMLA regulations, a remote employee may be deemed to “work” in the physical location to which she reports, even if it is hundreds of miles away. (The same is true when counting where employees work when analyzing whether the Worker Adjustment Retraining and Notification Act is triggered by a plant closing or layoff.)

Moreover, an employer cannot force an employee who is otherwise eligible for leave under FMLA to telecommute instead. However, for liability reasons, employers should not permit even well-meaning employees on FMLA to casually work from home without first obtaining a fitness for duty certificate from a doctor. The leave should then be treated and tracked as intermittent, rather than continuous, FMLA leave.