Telecommuting? 5 Potential Legal Issues

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By Betty Wang, JD on June 11, 2013 1:01 PM

Do you allow your employees to telecommute for work? If so, there are a myriad of legal issues that may arise.

In many cases, it's just more practical, more convenient, and preferred by both the employee and the employer -- especially if the job doesn't involve clients coming into the office.

But like any list of pros, there are some cons that accompany telecommuting as well. Here are five potential legal concerns to watch out for if you plan to allow telecommuting at your business:

1. Privacy.

Telecommuting employees should be made aware about their privacy rights when working from home. For example, just because work is being performed on a home computer doesn't mean that it's not susceptible to being monitored or inspected by the employer. Though the location may be personal, they are still acting under the scope of being an employee at work.

2. Wage and Hour Issues.

Employers need to carefully consider how they will properly report and record the hours of their non-exempt (non-salaried) telecommuting employees.

The Fair Labor Standards Act sets strict rules on hourly wages and paying overtime. So make sure that even while at home, the worker is able to comply. A good way to start is to draft a written agreement for working from home.

3. Confidential Information.

Confidential information is made more vulnerable when an employee telecommutes. When they bring home confidential data to work on, this raises the potential issue of leaking trade secrets or breaking confidentiality for the employer. One way to tackle this is to require that telecommuters sign a nondisclosure agreement of some sort.

4. Employer Liability.

What happens if an employee slips and falls at home, while on the clock? Or, what if he commits a crime in the scope of his employment while telecommuting? What about workers' compensation? Employer liability is still a huge concern for telecommuting employees. For starters, you may want a specific policy in place to address work-related injuries or torts that occur at a telecommuting employee's home office.

5. Discrimination.

Last, but not least, there may be discrimination issues to deal with. Discrimination does not have to be intentional. But if the end result is discriminatory, this could put you in legal hot water. For example, are only female workers or younger workers being allowed to telecommute? Lastly, don't forget that disabled individuals must be provided reasonable accommodations under the Americans with Disabilities Act (ADA). Depending on the specific job, "reasonable accomodations" may (or may not) include allowing the worker to telecommute.

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