By Laura J. Maechtlen

As we blogged earlier this week, here is the continuation of our “Top Ten” flex work issues and tips on how to solve them:

Issue Six:   How To Fulfill Posting Requirements

Federal, state and local laws require employers to conspicuously display certain posters in the workplace, where they can be read by employees and job applicants.  Employers must also distribute notices or pamphlets to employees when hired, or in connection with certain events. Employers typically comply with these requirements by posting notices in a conspicuous place,  where employees congregate (e.g., the employee break room).   Although the statutes requiring workplace postings and notices do not expressly require that employers post in the home of employees with flexible workplace locations, the statutes do not provide an exemption those employees either.  And, failure to comply with posting requirements can be punishable by a fine, or worse, imprisonment.

Proposed Solutions:  To be cautious, employers should consider providing employees who work remotely with copies of all required posters or intranet/Internet access to the postings with explicit instructions on how to access such postings.

Issue Seven:  Which Law Applies? 

Employees allowed to have flexibility in work location can often work outside the state in which the employer is located.  State laws often dictate tax withholdings, workers compensation coverage, and a myriad of other issues.  In addition, zoning issues should be considered.  In some jurisdictions, a person cannot maintain a home office due to zoning restrictions.   Further, a California Court held that non-California residents who work in California for a California-based employer were subject to California daily overtime laws if they performed their California work for whole days within the state.

Proposed Solutions:  Identify a primary work location for employees with flex work.   Understand whether an employee’s primary work location implicates another states or localities law, and ensure that you consider the legal implications of that law. 

Issue Eight:  Employee Use Of Confidential Or Private Information While Engaging In Flex Work

Employees with flex work arrangements may need to access private, confidential or sensitive information from the Company systems.  This can raise a host of concerns.  An employer’s confidential and proprietary information can lose its trade secret status if the employer does not take affirmative steps to protect and ensure the confidentiality of such data.  Data accessed offsite or used in transit may lead to a greater number of security breaches by hackers, nonemployees, or other third parties.   In addition, certain types of information (e.g., private medical information or financial information) must be maintained as confidential regardless of work location and—if there is an improper disclosure of such information—can result in significant business disruption or negative reputational impact with customers.    

Proposed Solutions:  Employers should develop a protocol for employees working offsite that involves input from the employer’s human resources, legal, and information technology staff. Employers should implement policies that reduce the expectation of privacy when accessing company information, whether from a personal computer or not.  Employees should be advised whether they are prohibited from accessing any type of company information remotely.   Employers should consider requiring employees with access to confidential and proprietary information to execute an agreement requiring that the employee safeguards and protects company information while working remotely, and to return to the employer all such information at termination.  Further, employers should consider a separate policy or agreement related to employee’s use of personal electronic equipment that allows the employer to inspect the device, and remove all company related information on termination.  

Issue Nine:  Ensuring Workplace Safety

Employers owe a general duty to provide a safe work environment, which can become difficult for employees with flexible work locations.  The Occupational Safety and Health Administration (OSHA) will not generally hold employers responsible for the safety of home offices.  Nevertheless, safety-related injury claims often are pursued by telecommuters under state workers’ compensation laws, and employers lose productive time when employees are injured.  Thus, employers should have an interest in ensuring safe working conditions for employees working remotely.

Proposed Solutions:  Employer policy should address workplace safety, and should require that all equipment supplied by the employer, the work area, and the work processes meet applicable safety requirements.  Policy should further require that employees maintain home worksites in safe manner, free from hazards, and reserve the right for the employer to inspect the premises.  Policy should also require employees to report all work-related injuries immediately.

Issue Ten:  Workers’ Compensation Issues

Workers’ compensation laws does not typically differentiate between on-site and off-site employees, and often covers any injury that occurs in the course and scope of employment.   For this reason, when a person is injured while working remotely, a determination for who is responsible can often be complicated.

Proposed Solutions:  Employer policy should require that, in the event of any accident, the employee must report it immediately.  Employers should also have employees acknowledge in any flex work agreement that they will cooperate in the investigation of a workers’ compensation claim and to permit inspection of their personal workspace (if in the home or other offsite location maintained by the employee).  When any report of injury is made, employers should obtain a detailed account of what work-related activities the employee was engaged in when he or she was injured.  Employers should provide employees who work remotely with the contact information for its workers’ compensation medical providers.  Employers are further advised to require that telecommuters include liability insurance coverage for injuries to third parties under their homeowners’ or renters’ policies.  Employees should also ensure that applicable insurance policies cover injuries that occur at telecommuters’ homes.