Telecommuting or teleworking is gaining momentum in the rapidly changing US business environment as well as in federal and state courtrooms. With the number of telecommuters rising from the ranks of federal government employees on top of the small business and Fortune 500 workforce, more legal entanglements are to be expected.
No law specifically addresses this class of employees until President Barack Obama signed into law the Telework Enhancement Act of 2010, first proposed in March 2009. Under the law, federal government is encouraged to emulate private industry by coming up with policies that promote and add telecommuting as a means of getting their jobs done. Barely recovering from the hard-hitting effects of the economic recession, the US government hopes that this alternative work style can help cut costs, downgrade energy consumption and ease traffic congestion.
Telecommuting, made possible by telecommunications technology, allows employees to work from remote locations like field and their homes or while travelling—essentially defying worker, workplace and work style conventions. It is argued that telecommuting, despite legal pitfalls, brings a lot of benefits to both employer and employee: working in the comfort of one’s home and time, improving productivity and attracting and retaining skilled and talented workers.
According to the US Office of Personnel Management in a report published in 2011, 2.5% or 3.1 million of the US employee workforce considers home as their primary workplace whereas 20 to 30 million Americans work from home at least one day a week. More than 5% of the federal workforce telecommutes. Meanwhile 82% of Fortune Top 100 Companies enable employees to work off-site whereas 52% of the total 27.5 million small businesses in the US are based on home and small offices.
The most common legal liability stems from workers’ compensation concerns, employer-employee relationship—whether they are employees or contractors—and the fact that precisely when telecommuters are working and when they have temporarily stopped are often unclear.
Lawsuits allege that telecommuting violates basic federal and state labor laws as this neither pays for overtime work or being on “stand by” nor does it provide severance pay and travel reimbursements. Telecommuters are often assumed as independent contractors and are therefore exempt from labor regulations. Arguing that home-based workers are still employees, they should nonetheless “in the course and scope of employment” be treated the same as worksite-based employees.
The Telework Enhancement Act mandates that teleworkers and non-teleworkers must be similarly treated for purposes of “periodic appraisals of job performance of employees: training, rewarding, reassigning, promoting, reducing in grade, retaining and removing employees; work requirements”.
The US Department of Labor by the Fair Labor Standards Act and other state laws mandate that employers must pay home-based workers the same hourly rate or salary for all hours worked and at least time and one half the regular rate for hours worked in excess of 40 in a workweek.
Further, telework employers covered by the FLSA and Americans with Disabilities Act are essentially required to cover expenses incurred by their employees working at home (DSL line, computer additional phone line, electricity costs, etc.) The US DOL Occupational Safety and Health Administration, despite not having regulations on telecommuting workplaces, require employers to keep records of work-related injuries and illnesses and they are not exempt from providing workers’ compensation premiums.
Expanding the workplace into people’s homes mean that we will see cases where workers are injured at home during their time “on the clock.” These cases will be difficult to show that the injury occurred in the course of employment even though the workers was working at home. Know your rights as a telecommuter. Contact the experienced lawyers of Kaplan Morrell at 303-780-7329 for a FREE CONSULTATION. We have helped thousands of workers in their workers’ compensation claims. Call us today!
