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8 pitfalls of letting law firm employees work from home

Contrary to what you might have heard in HR circles, refusing to let employees work from home will not make your law firm a dinosaur that nobody will ever want to work for. In fact, it will put you in the same position as the nearly 65 percent of employers that don’t allow telecommuting.

But telecommuting does offer significant business advantages. And to the extent you’re avoiding it because you don’t know how to manage the legal risks, you could be making a bad business decision. Conversely, if you are letting employees telecommute without appropriate legal arrangements, you’re steering your law firm into a liability iceberg.

Here are the 8 things law firm managers can do to exploit telecommuting’s advantages and avoid its disasters.

1. Don’t force employees to telecommute

Pitfall: Although it’s a desirable option for many, some employees don’t want to work from home. You can’t force the arrangement on employees if they don’t want to do it.

Example: Making social workers install home phone lines and computers in their homes to ensure availability to work from home certain nights violates privacy rights. The employee’s home is a protected place not subject to an employer’s reach, said the court.

Solution: Establish a written policy on telecommuting—like this Model Policy. Say that telecommuting is a voluntary arrangement and that employees won’t be made to work from home against their will (Policy, Sec. 3).

2. Define what telecommuting is

Pitfall: One of the biggest challenges of letting employees work from home is keeping the inmates from running the asylum. “If you’re not careful, employees will begin making unilateral decisions about whether to come to work each day,” warns a veteran HR director from Ohio. “The moment you start getting those ‘my dog is sick so I’m just going to work from home today’ calls, you’re in trouble,” she adds.

Solution: Lay down clear and total control over when working from home is allowed. Your Policy should make it clear that what you’re talking about is “telecommuting,” i.e., a formal arrangement in which the employee gets permission to work from home a certain number of days or hours each week, not simply “working from home” (Policy, Sec. 2).

3. Establish an approval process

Problem: Employees may seek to cut individual telecommuting arrangements with their supervising partners or attorney. Letting partners or senior associates approve such requests on an ad hoc, decentralized basis will create a tangle of separate and inconsistent telecommuting arrangements that your firm will be hard pressed to administer.

Solution: Your Policy should establish central control by setting out a single process for submitting and approving requests to telecommute. Best Practices: Require employees to fill out a written application form to request permission to telecommute. Designate the HR director, managing partner or another management person or team at your law firm as telework coordinator in charge of approving requests (Policy, Sec. 4).

4. Set out approval criteria

Pitfall: Telecommuting is a feasible option only for certain positions and individuals. The problem is that the criteria need to be made clear. Otherwise, denying permission to telecommute could lead to grievances, discrimination suits (if the employee turned down is a minority protected by the EEOC laws) or other legal complaints.

Example: A call center employee’s application for a telecommuting position is denied based on a single incident where he was disciplined for leaving work early without permission. The arbitrator finds the employer’s decision that the employee can’t be trusted to work at home is unfair and arbitrary.

Solution: Establish criteria for determining who can telecommute. Criteria should be based on both positions, e.g., jobs involving extensive phone contact or computer work but not face-to-face contact with clients or use of firm resources that can’t be moved from the workplace, and skills and personal qualities indicating they can be trusted to do their jobs from home (Policy, Sec. 5).

5. Define Productivity Standards

Pitfall: Employees who work from home can’t be closely monitored like other employees and are also subject to distractions, such as kids, the fridge and TV. So it’s not surprising that according to a recent CareerBuilder.com survey, only a small fraction of employees who work from home actually put in a full day’s work. Unfortunately, it can be tricky to fire a telecommuter for lack of productivity.

Example: Software company doesn’t have just cause to fire telecommuter for lack of productivity when “there’s no evidence that the employer set any standards for employees working at home.”

Solution: You can minimize productivity losses by setting out clear standards for telecommuters. Best Practice: Rather than including productivity standards in your Policy, include a provision in the Policy that requires employees to sign a written telecommute contract establishing productivity standards and other specific terms of their employment while working from home, including (Policy, Sec. 6):

  • Indicate how long the telecommuting arrangement will last;
  • Reserve the right to monitor telecommuters’ effectiveness and periodically evaluate their performance; and
  • Reserve the right to cancel the arrangement at any time and for any reason.

6. Keep control over work hours

Pitfall: Control over work hours and schedule becomes a major challenge when employees work from home, especially when those employees are non-attorneys covered by Fair Labor Standards Act (FLSA) laws. In addition to record keeping problems, it exposes you to risk of overtime claims, especially where employees accrue overtime for hours employers “require or permit” them to work.

Example: Computer services technician equipped with computer lines so he can remain on-call at all times gets paid overtime for hours he was “permitted to” work from home.

Solution: Set ground rules on hours worked. Require the telecommuter to reach an agreement on hours of work. Spell out the agreed-to hours in the telecommuter agreement. Set a maximum number of hours, (e.g., no more than 8 hours per day) or an exact work schedule, (e.g., from 9:00 am to 5:00 pm, Monday through Friday). Another possibility is to establish a weekly maximum that employees can’t exceed without first getting their supervisor’s written authorization. Also require telecommuters to keep and submit a weekly log of their work time so you can ensure that they’re following the agreed-to schedule (Policy, Sec. 6).

7. Restrict personal use of work equipment

Pitfall: Controlling employee misuse of your firm’s computers and other electronic equipment is tough enough when employees work on site. It’s an even greater challenge when the employee telecommutes.

Solution: Stress in your Policy that all work equipment must be used for work purposes only. Make it clear that the telecommuter is subject to the same firm policies as site employees, including those on bullying, cyberbullying and personal use of the firm’s equipment (Policy, Sec. 8).

8. Set rules for privacy and information security

Pitfall: The risk of privacy and security breaches is much greater in telecommuting arrangements. Once people plug their own equipment and thumb drives into the employer’s information systems, problems are bound to crop up. These problems can include computer viruses, violations of privacy laws and breaches of confidentiality.

Solution: Make sure that your policies and procedures dealing with computer usage and internet access, e.g., requirements that employees follow certain password protection and encryption procedures, apply to telecommuters. Require telecommuters to keep all files and other paperwork in a secure place. Instruct the telecommuter that these files are the firm’s property and must be returned immediately when their employment ends (Policy, Sec. 8).

Conclusion

Telecommuting can be a win/win for your firm and employees. The downside is that the traditional employment and work policies that you apply to employees who work on site don’t work as well in a telecommuting context. This article should help you make the adjustments and establish the policies necessary to implement them.


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NJ firm finds an easy way to reduce last minute sick calls


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