Teleworking as the “New Normal” Presents Challenges for Employers

As we navigate the COVID 19 pandemic, nearly every employer that is still able to operate is doing so with at least some combination of teleworking. Many employers are operating exclusively through teleworking. While teleworking allows companies to continue to operate, it presents several important employment law and HR considerations.

Usually, teleworking was offered to provide employees with a better work-life balance. Now teleworking is a matter of survival. Careful employers will consider not just what is needed to get through this pandemic, but also whether and how teleworking may assist them —or not — after this pandemic is over.

In normal circumstances, the extent to which teleworking is successful is a combination of the demands of a particular title, the worker’s personality, and the unique circumstances of their role within the organization. When it is successful, teleworking is rewarding for the employer and the employee. When it is unsuccessful, it may (or may not be) unrewarding for the employee, but it will certainly be painful for the employer.

Teleworking presents HR and legal issues, including wage-and-hour compliance, compliance with company policies, theft, invasion of privacy, social media, and workplace safety, among others.

Practically, the employer also needs to determine how the employee’s team is going to communicate with him or her and how the employer is going to track the employee’s productivity. Teleworking is far more likely to work when there is a culture of trust within a company.

Advances in technology are largely responsible for teleworking being a solution at all. But for teleworking to be successful, an employer must have the proper technology and have employees that know how to use it. Having advanced videoconferencing technology is provides no utility if your workers do not know how to log on the call. When an employee works from home, an employer sacrifices a lot of control over work systems. An employer needs to make sure its employees’ home hardware and networks are compatible. It may have to navigate additional firewalls on the employee’s home network — or no firewalls at all. Company email systems may be additionally exposed to viruses, spam, and phishing. Having records stored on an employee’s personal computer or computer system may present compliance issues. Not having the employees in the office also makes it far easier for them not to comply with company policies, such as EEO, creating a risk for legal claims.    

An employer will may need to make sure that their employees have all the resources that the need to perform their job. This may include providing computer hardware, cell phones, printers, and video conferencing equipment. If an employer intends to impose the cost of those items on its employees, it will need to determine whether and to what extent applicable wage-and-hour laws permit it to do so.

Employers will want to be aware of how much, or how little, its employees are working. For non-exempt employees, keeping track of hours worked is a legal requirement. For exempt workers, an employer will want to make sure that its remote employees are getting their work done. Planning regularly scheduled with remote employees may assist an employer.

Many employers that have teleworking arrangements memorialize them in writing. This is a good practice because it sets expectations for both the employers and employees. It can address work schedules, availability, technology, compensation, rules, and recordkeeping. Ideally, it will have a term, perhaps for a year. The term is not to suggest that the telework arrangement is temporary. Rather, it is designed to make sure that the employer and employee are looking at the teleworking arrangement on a regular basis to ensure that the plan in place is working for both parties.

In the coming months, as we return to normal, employers who are inclined to continue to utilize telework arrangements should reflect on their experiences during this pandemic and the set out in this column to see if and how telecommuting will (or won’t) work for them.