Training & Compliance

Are There Legal Issues for Telecommuters?

Yesterday we looked at some research about the widespread nature of telecommuting. Today we’ll take a look at BLR’s guidance on legal issues revolving around telecommuting.

There are no direct federal laws that regulate telecommuting. However, there are certain ancillary laws employers should consider as well as state laws. Some important federal laws to consider are:

ADA. The Americans with Disabilities Act of 1990 (ADA) requires employers to make reasonable accommodations for employees’ disabilities. An employer is not required to accommodate a disabled employee if the employer can show that the accommodation would impose an undue hardship on its business. The ADA does not mention telecommuting as a potential reasonable accommodation; however, several courts have suggested that employers must consider telecommuting as a reasonable accommodation under certain circumstances.

At the very least, the ADA requires an individual examination of each case to determine appropriate reasonable accommodations; therefore, a blanket policy banning telecommuting as a possible method of reasonable accommodation would likely be struck down by a court of law. As with any other employee, employers offering telecommuting as a reasonable accommodation to a disabled employee should evaluate the essential functions of the employee’s job to determine whether telecommuting is even a feasible alternative. If the employer does decide to offer telecommuting as a reasonable accommodation possibility, it should list the essential functions of the job in the telecommuting agreement.

FLSA. Under the Fair Labor Standards Act (FLSA), covered employers are required to pay employees for all hours the employer allows its employees to work, regardless of whether the employer has issued rules prohibiting such additional work. Nonexempt employees are covered by FLSA’s restrictions on minimum wage and overtime regardless of where they perform their jobs, including work done at home offices.

Employers covered by the FLSA must monitor the telecommuters’ hours and enforce any rules limiting such hours. To facilitate this process, the telecommuting agreement should have a section requiring the telecommuter to report hours worked on a daily basis. In addition, the agreement should include a provision advising the employee not to work more than a specified number of hours a week without prior approval. The employer should maintain records on each of his or her telecommuting employees, including the employee’s payment schedule and time reports. To avoid FLSA overtime liability concerning exempt employees, the telecommuting agreement should not transform an exempt employee’s job into a nonexempt clerical or ministerial position.

FMLA. Although the Family Medical Leave Act (FMLA) does not prohibit working at home during leave, the U.S. Department of Labor (DOL) has said that any time spent working for the company cannot count against the employee’s federal allotment of 12 week’s leave.