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A Fast Lane and Some Speedbumps on the Road as Telecommuting Becomes More Mainstream

Telecommuting has gained favor over the years in certain private sector industries and geographic areas. With the Telework Enhancement Act, signed by President Obama on December 9, 2010, the federal government has entered the telecommuting arena, setting mandates and parameters for programs that create eligibility and assure that participating employees suffer no adverse treatment or consequences in their performance appraisals, work requirements, or other acts involving managerial discretion. Federal agencies are required to (1) establish a policy under which eligible employees may be authorized to telework; (2) determine eligibility for telework participation; and (3) notify all employees of the agency of their eligibility to telework.

As defined in the Telework Enhancement Act, the term telework refers to a work flexibility arrangement under which an employee performs the duties and responsibilities of his or her position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work.

For a variety of reasons, working from home or close by has appeal to employees and employers, alike. But before adopting the federal government’s legislated endorsement of remote work locations for its own employees, private sector employers should weigh some significant practical considerations for themselves and those they hire. The ability to manage, supervise, and instruct, as well as monitor and evaluate work performance and efficiency, cannot be of the same quality outside a controlled workplace as inside.

Some questions employers should address prior to embracing telecommuting – especially across state lines – are:

  • How will work time be recorded beyond the customary start and stop times entered electronically or in writing? Homeworkers, in particular, may have more distractions from family, friends, visitors, and even domestic pets, than those working in a conventional, controlled workplace with other co-workers and direct supervision. Even while performance and output may not be impaired or diminished, the ability to measure compensable time with any precision could be difficult. The task is compounded by the need for accurate, reliable records of hours for overtime compensation of nonexempt employees.
  • How will safety in the workplace be managed, and who will bear responsibility for it? Will the employer be responsible for ensuring a safe work environment; and if so, will it have rights to access and control the remote workplace?
  • Which individuals or classifications of workers should be excluded from telecommuting? Among factors to be considered are the value of direct supervision and interaction, maintaining security and confidentiality, and individual disciplinary or work habit issues.
  • Will the employer’s engagement of an employee in a state where it otherwise has no activity be considered to be doing business in the state, subjecting the employer to registration or taxation issues or other business and employment considerations within that jurisdiction? Particularly as states look for bases to raise revenue and protect residents, it may be more likely that outside businesses will be subjected to the jurisdiction of the telecommuting employee.
  • Will the state where the employer is based assess income taxes on nonresident telecommuting employees who have no other connection to the state?

The telecommuting road may become more heavily traveled, but having a reliable roadmap before embarking on the journey may help avert unwanted detours and expensive breakdowns and repairs.