Remember rotary dial telephones, carbon paper, mag-card machines and belt-drive dictating units? Rapid advancements in technology are changing the face of businesses, large and small. New technological miracles unheard of even 15 years ago are making it feasible for employers to allow, and in some cases even encourage, employees to work from home. Such "telecommuting" arrangements can benefit both the employer and the worker -- flexible work schedules, improved morale, reduced employer overhead, accommodations for some employees with disabilities, and the list can go on and on. However, because the home work place is an extension of the employer's office or job-site, telecommuting arrangements pose legal dangers and pitfalls that employers must consider before authorizing telecommuting. With proper planning, an employer's potential exposure to legal liabilities can be reduced and telecommuting can be a viable and beneficial work place arrangement. This article will focus on only some of the many issues that telecommuting poses.

- DEFINING THE HOME JOB-SITE

The employer and employee jointly should determine the limits of the "job site" in the employee's home. This is where the employee will be deemed to be working for the employer and where equipment and supplies necessary for the employee to perform the job will be kept. The employee's home job site will be treated as an extension of the employer's business premises. Because an employer has various obligations and liabilities for what occurs in the work place, the employer should attempt to limit the area of the employee's work place within the home. As discussed below, an employee may have Americans With Disabilities Act obligations, workers compensation obligations, and premises liability for injuries to third parties.

- DETAILS OF THE TELECOMMUTING ARRANGEMENT

Allowing an employee to work from home can be a fundamental change in the manner in which the employee provides services for the employer. Therefore, it is essential for the employer and employee to define clearly their respective rights and obligations in this new arrangement. The employer and employee should review and agree upon issues such as:

• any changes in the employee's job duties, compensation and benefits, and hours of work,
  
• who has the responsibility for the acquisition, installation, care, maintenance and replacement of office equipment and furniture, and restrictions on the employee's use of these for non-business purposes,
  
• the employee's obligation to report to the employer's main job location,
  
• the employer's right to visit the employee's home work site,
  
• responsibility for maintenance of insurance for the home work site,
  
• reimbursement for employee home expenses,
  
• the procedure for the reporting and investigation of at-home "on the job" injuries,
  
• the procedure for the employee to report hours worked at home, and
  
• requirements for the employee to comply with generally applicable employer policies and regulations.
  

- WAGE AND HOUR LAWS

Even when an employee works at home, the employer remains obligated to pay the employee for all hours actually worked. This includes overtime pay where applicable. Because employers are unable to observe the time that employees actually spend "on the job" while at home, the employer must ensure that the employee reports daily and accurately the hours worked. To avoid a non-exempt at-home worker creating an unintended overtime pay liability for the employer by working more than 40 hours per week without the employer's knowledge, the employer should have a clear prohibition against any non-exempt employee working more than 40 hours per week without prior authorization.

- SECURITY AND CONFIDENTIALITY OF EMPLOYER PROPERTY

A telecommuting arrangement makes it more difficult for an employer to safeguard its personal property and its confidential information. An employer usually takes precautions to protect its personal property, and to guard its proprietary, confidential and trade secret information, at the employer's regular offices or job location. An employer should be no less vigilant just because an employee is working at home.

Depending on the nature of the employee's job, the telecommuting employee may keep and maintain at the home job site hard copies of a wide range of sensitive employer data, documents and information. The telecommuting employee also may have access to such information through the home work place computer that is networked into the office. The employer must be at least as careful in protecting such confidential, proprietary and trade secret material from intentional or inadvertent disclosure or misuse by the telecommuting employee as the employer would be in protecting the same information in the employer's primary offices or job location. These precautions may include confidentiality requirements for the employee, restricting access to locations where such materials are kept in the home, and password protection for computer systems and programs.

Additionally, the employer must be able to recover its equipment and other property, and particularly sensitive materials, from the telecommuting employee promptly after the employment ends. Although this may not be a major issue if the termination of the employment is amicable, the involuntary termination poses a particular threat for the employer if the property is located at the employee's home. The employee's obligations to return, and the employer's rights to recover, equipment and other property upon termination of employment should be clearly defined at the outset of the telecommuting arrangement.

- WORKERS COMPENSATION LAWS

The telecommuting employee will be covered by the employer's workers compensation insurance while working at home. On the job injuries that take place at an employer's regular work location often are witnessed by co-workers or third parties, and generally are reported promptly by the injured employee. Usually, there is little question that the injury took place during the course of the employee's employment. However, it is not as easy to verify whether an at-home injury to a telecommuting employee occurred in the course of the employment, particularly when the employee undertakes non-work related activities at home during the workday and the injury is not witnessed. The solitary nature of the telecommuting arrangement also presents a potential for worker compensation abuse by an unscrupulous employee.

- AMERICANS WITH DISABILITIES ACT

The Americans With Disabilities Act poses several issues for a telecommuting program. First, an employer that has 15 or more employees must provide reasonable accommodations for an employee with a disability if necessary to assist the employee to perform the essential functions of the job. The law is unsettled as to whether an employer is required to allow an employee to telecommute as a reasonable accommodation for some disabilities that might make it difficult for the employee to work at the employer's regular job location. However, where an employee with a disability is permitted to telecommute, the employer's reasonable accommodation obligation extends to the home job site. In order to limit those areas within the home where an employer may have an obligation to provide certain types of accommodations, the limits of the home work place must be defined.

Second, if members of the public come to the telecommuting employee's home to conduct company business, the home work place then may become a "place of public accommodation" within the meaning of the Americans With Disabilities Act. This means that under some circumstances barrier-free access, or other access accommodations, may have to be provided to the work site for business visitors who have mobility disabilities. Thus, employers should consider prohibiting any business invitees from coming to a telecommuting employee's home work site.

- CONCLUSION

An employer should not underestimate the potential liabilities posed by a telecommuting arrangement. Careful attention and planning can minimize the employer's exposure. Ideally, an employer should have a written agreement with each telecommuting employee that addresses the issues discussed in this article and other matters that affect the rights and obligations of the employer and the telecommuting employee. If separate agreements with each employee are not feasible, the employer should have, at the least, a detailed telecommuting policy that contains the rules and regulations applicable to all telecommuting employees. This policy should be given to each telecommuting employee before the telecommute begins, and each employee should be required to sign an acknowledgment that the employee has received the policy, has read the policy, understands the policy, and agrees to be bound by the policy as a condition of being permitted to telecommute.

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This article is not intended to provide legal advice, but rather to provide information concerning recent developments in the field of employment law. Questions regarding individual situations or problems should be discussed with legal counsel.