United States: How Flexible Are You? Stretching The Boundaries With A Remote Workforce

Yahoo! CEO Marissa Mayer's recent decision to ban telecommuting has highlighted the issue of how employers of all sizes respond to technological changes that are redefining the workplace. 

In addition to the savings of decreased overheard (in the form of office space, equipment, or otherwise), telecommuting may provide other tangible benefits. Indeed, recent studies suggest that telecommuting may increase employee satisfaction,1 decrease turnover (and consequently, recruiting and new employee training costs),2 and decrease absenteeism.3 It can also reduce an employer's "carbon footprint" by eliminating the energy consumption associated with traveling to the workplace. However, these technological changes also impact how supervisors and subordinates interact, and the human component may lag behind technological advances. A recent MIT study, for instance, found that supervisors often look more favorably upon employees who put in "face time."4

From the startup employer to the multinational corporation, the potential to telecommute creates new compliance challenges. For employers that decide not to offer telecommuting, working from home might remain a "reasonable accommodation" under state and federal disability laws that these employers must still consider. Employers offering telecommuting should ensure that their confidential data and intellectual property remain uncompromised. Monitoring the "work time" of telecommuting employees, especially for those paid on an hourly basis, creates its own set of difficulties. These are but a few of the issues that employers will wrestle with in adapting to technological innovation that allows employees to work from anywhere in the world. Proactively maintaining and periodically updating alternative working arrangement or telecommuting policies is essential to realizing the benefits, and avoiding the pitfalls, of the changing workplace. 

Telecommuting and the American Workplace

The relationship of the employee to the physical workplace is rapidly changing. The U.S. Census Bureau reports that in 2010 13.4 million American workers worked from home at least 1 day per week.5 This is up approximately 18 percent from 2005 (despite a two percent drop in the number of individuals employed) and constitutes nearly 10 percent of the American workforce.6 Moreover, home-based work for those employed in engineering, the computer industry, and science increased by 69% from 2000 to 2010.7 The western United States has the highest percentage of home-based workers (11.4 percent), perhaps partially due to its burgeoning startup culture. 

In industries where telecommuting is common, permitting employees to work remotely may become a competitive necessity. In other industries, it may be a way to gain a competitive advantage. Either way, human resources staff and legal counsel should carefully manage the transition and day-to-day implementation of remote working arrangements. 

Legal Complications

Work "Away from Work" and Equal Employment Opportunity

Not all workplaces are well-suited to work-from-home arrangements. The technological ability to work remotely, however, may create obligations under the Americans with Disabilities Act and related state laws; namely, "work from home" can in some circumstances arguably constitute a reasonable accommodation.8 The Equal Employment Opportunity Commission adopts this position and contends that work from home/telecommuting arrangements may be a reasonable accommodation even if working remotely is not available to other employees.9 Employers that wish to have a general policy against telecommuting should keep in mind their potential obligations under state and federal disability laws. Moreover, they should be aware that entering into remote working arrangements with some employees may make denying such benefits to disabled employees more difficult. 

Many employers offer telecommuting on an informal basis, but the absence of a formal policy can expose employers to potential discrimination lawsuits. Disparate use of managerial discretion in this regard may form the basis of disparate treatment or disparate impact allegations. Employers that maintain and evenly apply telecommuting policies are better positioned to avoid such claims.  

Protecting Company Data

Telecommuting can exacerbate the challenges employers face with respect to protecting sensitive data. For example, some employers permit remote employees to access and create confidential information on their personal devices. By doing so, employers are less able to ensure disgruntled employees do not retain and disseminate confidential or trade secret information post-termination. In addition, consumer electronic devices generally lack the security necessary to protect against malicious hacking. The legal framework surrounding employee privacy and employer access to dual-use employee-owned electronic devices is complicated, and warrants attention should an employer allow employees to work on personal devices.  

Employers whose business requires that they maintain strict privacy controls and/or whose primary asset is intellectual property should consider policies requiring the use of company-owned equipment when accessing or creating sensitive information. Employers should also have established procedures for the return of company property upon termination of employment. Such policies can curb ex-employees' retention of private information, and the inadvertent disclosure to third parties (such as spouses and housemates) who may share devices.  

Wage and Hour Compliance

A recent study found that employees who work from home add an average of 5 to 7 hours of productive time, often in addition to their standard workweek.10 While remote employees' willingness to work hours beyond the standard 40-hour workweek makes telecommuting an attractive option for some employers, it comes with potential wage and hour complications. 

The inability to monitor remote employees' schedules makes it more difficult to prohibit off-the-clock work and to ensure compliance with overtime regulations for non-exempt workers. In some states, employees are entitled to overtime for hours worked in excess of 8 hours in a day and/or for working seven consecutive days. Thus, employers should remain diligent in monitoring remote employees' schedules and working hours. In addition to overtime, employers should be aware of all applicable meal and rest break regulations and recordkeeping requirements in all jurisdictions in which they operate. The reality is that remote working arrangements require engaged human resources staff to closely monitor wage and hour compliance. 

Is Telecommuting Right for Your Business?

Whether telecommuting and other flexible arrangements are good for a particular workplace is contextual. Employers considering these options should take heed of Yahoo!'s experience. Some news sources are reporting that Yahoo!'s decision to end telecommuting came after examining VPN logs which showed that many remote employees were not signing in.11 This shows that employers should not fall into an "out of sight, out of mind" mentality for both business and legal reasons. Moreover, the backlash against Mayer suggests that it is difficult to undo a corporate culture accustomed to flexibility and minimal oversight of its working arrangements. This, in turn, highlights the importance of being compliance-minded from the outset. Startups and growing companies are uniquely situated to mold a culture that helps remote employees remain productive even as they grow in size, and are accustomed to working with a compliance-minded management team. 

Next Steps

This article discusses only a few of the many challenges created by the remote workplace. To capture the maximum benefits of a well-functioning remote workforce, employers should consider other issues, such as workers' compensation, occupational safety and health, and state taxation. Thus, employers of all size can benefit from conferring with experienced employment counsel to evaluate their existing remote working arrangements, or to implement new ones. In addition, employers informally offering remote work options should create formal written policies.  

Proactive employers will be well-positioned to adapt to the workplace of tomorrow – where boundaries are not defined by the traditional walls of an office.

Footnotes

1 Nicholas Bloom, James Liang, John Roberts, and Zhichun Jenny Ying, Does Working From Home Work? Evidence From A Chinese Experiment, Stanford University, Feb. 22, 2013. 

2 Id.

3 Peter J. Mateyka and Melanie A. Rapino, United States Census Bureau, P70-132,  Home-Based Workers in the United States: 2010 (Oct. 2012).

4 Kimberly Elsbach and Daniel Cable, Why Showing Your Face at Work Matters, MIT Sloan Management Review (Summer 2012). 

5 Neil Shah, More Americans Working Remotely, The Wall Street Journal, March 5, 2013, available at http://online.wsj.com.

6 Peter J. Mateyka and Melanie A. Rapino, United States Census Bureau, P70-132, Home-Based Workers in the United States: 2010 (Oct. 2012).

7 Id.

8 See Nixon-Tinkelman v. N.Y.C. Dep't of Health & Mental Hygiene, 434 Fed. App'x 17 (2d Cir. 2011) (remanding to the district court to consider, inter alia, whether working from home is a reasonable accommodation).

9  Equal Employment Opportunity Commission, Work At Home/Telework as a Reasonable Accommodation..

10 Marcy C. Noonan and Jennifer L. Glass, The hard truth about telecommuting, Monthly Labor Review (June 2002).

11 Brett Molina, Report: VPN logs led to Yahoo telecommute, USA Today, March 6, 2013. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions