Flex plans and telecommuting have become essential to maintaining operations. And it’s important to remember that, while a necessity in many cases, these work options carry some thorny legal issues.
Below, attorney Laura Maechtlen offers a spot-on analysis of the pitfalls of flexible work environments on the Seyfarth Shaw Labor and Employment Counsel blog. Here are some highlights:
Managing flex work arrangements
Many employers have already eased into flexible work arrangements over the past several years … and have handled each employee’s situation as a one-time event.
The big danger in taking a piecemeal approach is that you could wind up facing discrimination claims if:
- permission to enter into one of these non-traditional setups isn’t granted in a consistent manner, or
- employees working in a flexible plan setup aren’t managed under the same set of standards as on-site workers.
Flex work arrangements should be thought of as a job assignment. There should be legitimate, objective business standards clearly articulated for eligibility, either in a written policy applicable to work groups, or in agreements with individual employees (or both).
Employers should clearly communicate to all employees how they can request flex work, the employer’s ability to change or discontinue flex work “at will,” and how flex work arrangements impact other company policies or provision of benefits.
Keeping track of their time
Another tricky area to try to handle remotely. Oftentimes, hourly workers are subject to limitations on the number of hours they can work, in order to protect the employer from having to pay overtime. But without direct supervision, controlling those hours is guesswork. And keeping accurate records is yet another headache.
Exempt employees working flex or telecommuting arrangements pose a different set of problems. In order to make sure staffers are as productive as possible, some employers might be tempted to try to track precise hours worked by exempts. That practice could lead to claims that these folks are actually non-exempt — and create overtime issues.
For non-exempts, structure flex work so that employees do not work overtime and, if they do, ensure the time is accurately recorded. If non-exempt employees have flexibility in work location, ensure your policies are clear about when they are allowed to work, how to obtain authorization to work overtime, and that off-the-clock work is prohibited. A process whereby employees with flex work locations certify their time records each pay period, including an attestation that of the accuracy of those records, is recommended. Finally, employers should consider whether to conduct periodic audits to ensure the accuracy of time records.
For exempt employees, ensure that you know whether the employee who is planning a flexible arrangement is truly exempt. Remember, tracking the hours of exempt employees can be risky — therefore, track exempt employee hours for business reasons only (e.g., to bill clients for time spent on projects, or to ensure employees are present during key meetings or core hours). Ensure that your policies do not contain language implying that a salaried employee may be docked wages if they fail to work a set schedule or certain number of hours.
Which law applies?
Things can get tricky when, say, an employee works in a different state than where his or her employer is located. As Maechtlen points out, state laws are often very specific about such things as methods of tax withholding, workers’ comp coverage and other minutiae. Even zoning laws can come into play: Some jurisdictions prohibit home offices in certain areas.
Identify a primary work location for employees with flex work. Understand whether an employee’s primary work location implicates another states or localities law, and ensure that you consider the legal implications of that law.
Accommodation for ADA disability
Your company may already have a flexible workplace policy you don’t even know about — it’s called the Americans with Disabilities Act.
Numerous court decisions — and ADA rules and some state regs — make it clear that in many cases, working from home can qualify as a reasonable accommodation for an employee’s disability.
And if you do allow employees to work remotely on a regular basis, you may well have to provide accommodations of the same type you’d have to provide if the employee was working in the home office — things like special seating, lighting and other ergonomic improvements.
Employers should carefully review all requests for accommodation while keeping in mind available and applicable flex work arrangements the company has provided to other employees. Be consistent.
Of course, an employer is not required to provide any form of work arrangement that is unreasonable, or that would constitute an undue hardship. Indeed, not all essential job functions can be performed out of the office. Many jobs require that employees interact face-to-face, to share information, collaborate or ensure the work is completed. And, even if the essential functions do not require face-time, some flex work may not be the most “reasonable” accommodation offered.
Keep in mind, however, that allowing flex work may be a reasonable accommodation if the person’s disability prevents successfully performing the job on-site and the job — or parts of the job — can be performed at home without causing significant difficulty or expense.
We’re all familiar with the requirement that employment law notices be posted “in a conspicuous place” in the workplace. So does that mean you have to furnish every off-site worker with a full set of employment posters?
To be cautious, employers should consider providing employees who work remotely with copies of all required posters or intranet/Internet access to the postings with explicit instructions on how to access such postings.