Teleworking Michael T. Rengel Kristi A. Hastings Joshua Heggem w) Pemberton, Sorlie, Rufer & Kershner 1

First Steps The key is going to be to address, at the front end, as many of the contingencies as you can and then maintain open communication from that point forward. The three most important pieces an employer will need are: ◦ Policies ◦ Application ◦ Agreement 2

Policies Policy Pointers  ◦ Who will be eligible to seek teleworking as an option? Not every position is amenable to teleworking within your current workforce. ◦ Reserve right to discontinue if it is not beneficial to the employer. ◦ Require existing employees to complete a request to telework, and address the business reasons for why it would work for their particular positions, what days/times they are requesting.  Establish an internal system for neutral evaluation of requests to telework to avoid claims of discrimination. 3

Policies Establish that a denial of a request to telework is final and not subject to any grievance procedures. Require that employees be reachable by telephone or during the agreed-upon work hours to keep communication open. ◦ Discuss internally whether teleworking employees should be provided cell or smart phones for communication purposes. ◦ Discuss internally what type of technology/ connection will be required at the work location. The employee and supervisor should agree upon detailed plans for expectations in terms of communication/responsiveness. 4

Policies Treat teleworking employees the same as existing workforce in terms of pay, benefits, leave policies, etc. Address what physical pieces the employer will be providing (computer) vs. what the employee will be providing (office furniture). ◦ Address what would happen if the employer’s physical items are damaged, whether intentionally, by a guest in the employee’s home, etc. 5

Policies Address return of employer’s property at the end of the employment relationship or the end of teleworking period. ◦ Hardware and software. Address personal use of employer’s technology. A strong acceptable use policy will be important. Address privacy of employer’s data. ◦ Confidentiality agreements. Require teleworking employees to have appropriate daycare or dependent care during their working hours so that they can focus on their work. 6

Policies Address expectations regarding the hours of work. Require regularly scheduled hours of work. Include language allowing employer to inspect the workplace from time-to-time. ◦ Safety issues. ◦ Appropriate workplace. Address whether office supplies will be provided by the employer or by the employee. Require employees to refrain from conducting any personal business during their regularly scheduled work hours. Require that the quality of the employee’s work be equal to the same standards expected of those employees at the primary workplace. 7

Policies Address Fair Labor Standards Act considerations, such as travel time (compensation from home site to required work travel locations), overtime, etc. 8

APPLICATION TO TELEWORK Helps Set the Stage for Success Once you have established teleworking policies, prepare an application for existing employees to “make the case” for teleworking in their position. ◦ A team should be established to consider requests to telework in a neutral and non-discriminatory manner. 9

AGREEMENT Seal the Deal Employers should draft a teleworking agreement or contract to be entered into between the employer and the employee. This will help formalize the process and solidify expectations and understandings. 10

Practical FLSA ◦ Exempt Employees  Make sure employees are properly classified. ◦ Non-Exempt Employees  Require meticulous record- keeping of hours worked. An electronic punch or telephone punch in and out process would be best.  Require approval prior to working overtime hours.  Control unauthorized “off the clock” work. True “off duty” time is not compensable working time; however, “periods of inactivity” are compensable. 29 C.F.R. §785.15, § Performance Reviews ◦ Annual reviews are a must. Consider shorter review periods when starting a teleworking program. ◦ 360 degree review process  Self-evaluation  Peer review  Supervisory review ◦ Do not be afraid to tell the truth. Performance reviews are the employer’s opportunity to give employees notice and opportunity to correct deficiencies (or to pat them on the back for a job well done!). 11

Practical Worker’s Compensation ◦ Courts have traditionally held employers responsible for employee injuries that occur while performing a job-related task, even if the accident occurs “off site.”  Clear log in and out procedures will help clarify whether an employee was “at work” at the time of the injury.  Inspect the workplace for general safety concerns.  Check with your WC carrier to see if it has other restrictions or requirements. Americans with Disabilities Act (ADA) ◦ Employers must provide qualified disabled employees “reasonable accommodations” to allow them to complete their job duties. ◦ Teleworking may provide more opportunities for disabled workers, but providing “reasonable accommodations” in an employee’s home may prove difficult and should be reviewed carefully. 12

QUESTIONS? 13