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Under flexible work arrangements, employees can change the place where their work is done—for example, by working from home or from a mobile location—or the hours when their work is done, with different work start and end times, job sharing or flexible or compressed workweek schedules.
Employers in the U.S. who have employees in flexible work situations need to consider federal, state and local laws that affect these arrangements.
Wage and Hour Recordkeeping
With telecommuting arrangements, employers must monitor carefully the work hours of employees who are not exempt from federal Fair Labor Standards Act (FLSA) overtime requirements in order to avoid a violation of unpaid overtime. With employees in compressed workweek schedules, employers must adjust the defined workweek so no employee overtime is incurred; they must make sure that their timekeeping procedures incorporate any state daily overtime requirement and maximum hour limitation.
Typically, state workers’ compensation laws do not distinguish between on-site and off-site employees, said Kevin
Hess, an associate with law firm Squire Sanders in Columbus, Ohio, who focuses on workplace health and safety. But the determination of whether a telecommuter’s injury at home is compensable depends on the facts of the case and is extremely difficult to anticipate. And, although an employee generally is not covered for an injury when going to and from work, accidents that occur after an employee’s workday has begun often are compensable. This includes travel between worksites, so telecommuters who are injured traveling to their employer’s office might be entitled to compensation, he advised.
Employers must ensure a workplace free from hazards for home-based employees as well as employees working at other off-site locations. The federal Occupational Safety and Health Administration will respond to complaints of unsafe home workplaces and will fine employers whose employees work in unsafe home worksites, said Hess.
Under the Americans with Disabilities Act (ADA), flexible work arrangements may be considered a reasonable accommodation for a disabled employee. To avoid charges of unfair and discriminatory treatment, employers must keep the same conditions of employment for disabled employees in flexible arrangements as for nondisabled employees.
Data Security/Employee Privacy
Employers need to protect confidential business and proprietary information while providing remote workers access to such data. Security measures must cover company-owned and employee-owned computers, laptops and mobile devices. Data security is especially critical if the telecommuter works with health information that is covered by the electronic security rule of the Health Insurance Portability and Accountability Act (HIPAA).
Third parties who are injured on the telecommuting employee’s property—a delivery person bringing work-related documents to the employee’s home who slips and falls on the steps, for example—may bring a tort claim for injuries against the employer.
Tax issues might arise when an employee works at home in a state other than where the employer’s business is located. Some states have reciprocity agreements so that telecommuting employees do not face double taxation; others do not, and workers then may be subject to two state tax bills on the same wages.
Susan R. Heylman, Esq., is a freelance legal writer and editor based in the Washington, D.C., area.
Tools and Training Prepare Managers for Workplace Flexibility,
SHRM Online Benefits Discipline, January 2012
FLSA Inhibits Workplace Flexibility Policies,
SHRM Online Benefits Discipline, November 2011
SHRM Online Workplace Flexibility Resource Page
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