Login | June 01, 2020

Attorneys advise employers on work-from-home policies

SHERRY KARABIN
Legal News Reporter

Published: May 8, 2020

With a large number of employees working from home at least part of the time, attorneys are advising employers to develop formal written policies, which detail rules and expectations.
As Karen Adinolfi, a shareholder at Roetzel & Andress explains, while telecommuting is nothing new, the recent stay-at-home orders issued to help combat the COVID-19 pandemic have dramatically changed the inner workings of many companies.
“Ideally employers would have work-at-home policies already in place but because the changes were so sudden and on such a widespread scale, many do not,” said Adinolfi, who focuses her practice on employment law matters.
“Clearly there are certain jobs that still require an in-person presence, such as in the retail and foodservice industries, but many white collar and corporate functions can be done remotely, whether totally or partially.”
While there are a number of factors to consider when crafting work-from-home policies, Paul Dutton, senior attorney at Harrington, Hoppe & Mitchell said the first step should be to determine which positions are appropriate for telecommuting.
“Generally speaking jobs that can be done from home are those that require independent work, with little or no supervision and little or no face-to-face contact with supervisors, employees or customers,” said Dutton, who focuses his practice on matters ranging from business and public sector law to purchase, sale and mergers. “An employee’s job should be able to be measured in terms of a specific work product, not time spent doing the job.
“Some efforts are easy to document, such as in cases where someone is required to turn in a certain number of reports each day,” he said. “Some work can’t be quantified, especially if much of the work is done on the phone and involves sales since not all calls yield a sale.
“Employers should do a thorough analysis of an employee’s position and how the work is performed when considering whether the person can telecommute successfully.”
Dutton said even if an employee’s job duties lend themselves to working from home, the worker still might not be a good fit.
“A good candidate for telecommuting is someone who is self-motivated, flexible, knowledgeable about the job, organized, dependable, trustworthy and possesses good communication skills,” said Dutton. “Even if someone checks all the boxes, if the individual is someone who requires social interaction, he or she may not be the right person to work from home.”
Once the selection process is complete, Dutton said the next step is to detail the specific tasks to be performed, which should be approved by a supervisor, department head and a company executive.
“The list might include reviewing and responding to incoming mail and email either electronically or by phone, preparing correspondence, receiving and reviewing applications and maintaining direct communication with other department employees and supervisors.
“After the duties are determined, an employee should be required to sign a consent form agreeing to the terms,” he said. “This is a way of holding the employee accountable should he or she fail to meet the expectations down the road and need to be disciplined or let go.”
Adinolfi said businesses must also clearly define whose equipment and supplies will be used to carry out the work tasks.
“Ideally, the employer will provide the computer, software and other needed items and be responsible for maintenance and security,” she said. “Requiring an employee to use his or her personal equipment has many downsides, most notably, a lack of robust security.”
A cybersecurity provision that mimics in-office rules is essential, she said.
“Cybersecurity is even more critical when an employee is working from home,” Adinolfi said. “Employees should be using a VPN (virtual private network) to conduct their work and, as is the case if not working remotely, should be discouraged from using company email and WiFi for personal use.”
Timekeeping is imperative, said Adinolfi. “There must be a mechanism in place for tracking a non-exempt employee’s time worked.
“Online time clocks that record the time that an employee logs in and out of the computer are one way to do it,” she said. “If the workplace relied on manual timesheets or time cards, employees should be required to continue to complete those.
“There should also be a start and end time to the workday, with lunch and any breaks built into the day,” Adinolfi said. “If employees are required to participate in conference calls or other activities they would not normally do in the workplace, that should be in writing as well so there are no surprises.”
Dutton said it’s important that employees be required to provide regular updates on the scope of the work they complete, with a communication method for doing so clearly defined.
“In some cases, it might be a good idea to have the employee keep a log of all work activities performed,” he said.
Ideally, a work-from-home policy should have a start and end date, said Dutton.
“Given the current pandemic, there is no way to predict an end date,” he said.
“However generally speaking all policies should include these dates.
“There must also be a mechanism in place to provide regular written evaluations to the employee, and if compensation needs to be adjusted, that should be spelled out as well.”
Adinolfi predicts that telecommuting may continue to be a way of life for many workers even after the pandemic is under control.
“I think the recent climate will do much to change the overall mindset of employers that a physical presence is required to get any job done,” she said. “As a result, having these policies in place will become even more important in the future.”
Since the needs of companies do vary, Dutton said it’s important for business owners to meet with an attorney to discuss the specifics.
“While the basic foundation may be the same, policies need to be as unique as the company itself,” said Dutton.


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