How to Prevent Remote-Work Abuse

Allen Smith, J.D. By Allen Smith, J.D. September 11, 2020
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​Remote work has been a success for most companies during the pandemic, but some employees may be abusing work-from-home privileges. Effective policies, tools and communication can help stave off abuse.

"During this period of time when employees are working remotely, it has never been more important for employers to regularly communicate with and check in with employees," said Ellen Bronchetti, an attorney with McDermott Will & Emery in San Francisco.

"Regular communication is critical to maintain employee morale and to keep the workplace cohesive," she said. Frequent talks "may also help an employer identify an employee who is either struggling with the new remote-work environment or to identify signs of remote-workplace abuse."

Signs of Abuse

Bronchetti said such signs include an employee:

  • Not responding to e-mails or telephone calls during regular business hours for long stretches.
  • Not being available for calls or videoconference meetings.
  • Being late with work assignments.
  • Going out of town without seeking approval.

Another indication is customer complaints about a lack of responsiveness.

"Managing remote teams is best done with metrics of performance established as benchmarks, allowing for measures of performance," said David Lewis, CEO of OperationsInc, headquartered in Norwalk, Conn. "Someone who is not meeting those benchmarks will be easy to pick out." Those benchmarks include project output and meeting deadlines, he noted.

Policies

Employers should have policies in place that clarify what conduct is not acceptable in the remote workplace, Bronchetti said.

"The more detailed the policies are, the better so that employees can clearly understand what is and what is not permitted," she stated. Train employees on the employer's expectations and ask workers to confirm in writing that they understand and will follow them.

Bronchetti said policies should address:

  • What hours nonexempt employees are expected to be on the clock.
  • When exempt employees are expected to be available.
  • Where an employee can work if his or her job requires access to confidential information.

"With that said, policies are only effective if they work and recognize the challenges of working from home faced by many," she added. Many employees don't have a home workspace free of distractions, are balancing child care responsibilities and have limited options about where they can work. Get feedback from employees to better understand their challenges and address their concerns, she recommended.

When an employee is not complying with the work-from-home policy, an employer should talk with him or her. An employer may learn that a well-meaning and seemingly neutral policy may inadvertently and unreasonably disadvantage a working parent over an employee who doesn't have a child. The employer consequently might decide to change the policy, Bronchetti noted. But if an employer learns the employee has no valid justification for violating it, corrective action may be necessary, she added.

Revocation of remote-work privileges "is an option whenever there is a situation where abuse has been identified," said Angelo Filippi, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla.

If return to work isn't feasible, an employee who is abusing work-from-home privileges should be warned that if performance doesn't improve, termination of employment is the next step, noted Joyce Chastain, SHRM-SCP, a senior consultant with The Krizner Group in Tallahassee, Fla.

Tools

Employers may use several tools to determine if employees are abusing remote-work privileges.

Assuming employees are using company-provided cellphones and laptops and an employer's policy permits monitoring of these devices, employers can easily determine when employees log in and log out of their computers and use their devices.

But Bronchetti recommended that employers "consider whether having a practice in place that monitors employees' activity creates a culture that is consistent with the company's values."

She added, "Many employees believe feeling trusted by their employer leads to increased productivity and overall satisfaction with their workplace. Monitoring employees' computers and cellphones to ensure compliance with remote-working policies may jeopardize employees' belief that they are trusted."

An employer that is monitoring employees also needs to ensure it is doing so consistently to avoid discrimination claims, Bronchetti noted.

Moreover, many employees, despite policies to the contrary, use work e-mail for personal reasons, she observed. "An employer's decision to regularly monitor employees' e-mails could lead to an employer learning private information about [an] employee that it may otherwise not want to know, such as whether an employee has a medical condition," she said. "If an employer chooses to engage in regular monitoring of e-mail, it should consider whether it is reviewing for content or simply for information as to when an employee logs in and logs out."

Some employers have implemented requirements on remote workers that direct them to record their time throughout the day. "While this could be a valuable tool to ensure employees are staying focused and on task, this does create an administrative burden on employees and may lead employees to not feel trusted in their workplace," she said.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

Effective Communication

Don't assume an employee is abusing work-from-home status, cautioned Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md.

"I find 'misuse' sometimes better describes the situation," she said. "The employee just does not know how to be efficient or use certain new technologies or processes or thinks he or she is doing it correctly but misunderstood the instruction."

Be specific with guidance to employees, Chastain recommended. "In other words, rather than sending an e-mail saying, 'review this document and let me know your thoughts,' the supervisor should say, 'review this document and get back to me early on Monday with your thoughts.' "

Chastain noted that with remote work, ad hoc follow-up is minimal. "There's not a chance encounter in the office hallway or breakroom. Everything must be purposeful," she said. "Many supervisors aren't good at this, and it results in frustration with subordinates."

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