Telecommuting Employees and Unauthorized Overtime – Must the Employer Pay?

posted on: Monday, December 15, 2014

In today’s ever-increasing digital world, more employers than ever are turning to telecommuting to help reduce overheard and increase morale of employees. Importantly, however, state and federal laws apply equally to employers and employees, regardless of whether they work on-site or remotely. Among the most common issues and missteps which affect employers with telecommuting employees are wage and hour laws and, more specifically, overtime laws.

All non-exempt employees must be paid for all time worked, regardless of whether the work was performed on-site or remotely. Importantly, this rule typically applies regardless of whether the employer authorized the performance of the work or not. If, for instance, an employee works more than 40 hours per week at home, the employer must pay the employee overtime wages for all time worked – even if the employer did not authorize the employee to work overtime.

As a result, it is imperative that the employer have a lawful and enforceable policy with respect to overtime, particularly suitable for employees who work remotely. Such a policy should be clear that any overtime must be authorized in writing, and that any overtime worked without authorization will subject the employee to disciplinary action. Note, however, that if an employee violates this policy by working overtime, that employee remains entitled to receive overtime wages, but an employer should determine whether to retain an employee who consistently violates company policy.

Before approving any telecommuting policy, an employer should take care to ensure that its policy is not only lawful, but also enforceable. While telecommuting may be the solution to many employment-related issues, it is only as effective as the policies which govern telecommuting employees. 

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

http://www.natlawreview.com/article/telecommuting-employees-and-unauthorized-overtime-must-employer-pay

No Longer a Remote Possibility

R. Scott Oswald and David L. Scher

November 19, 2014

Under the Americans with Disabilities Act, an employee must be qualified to perform the essential functions or duties of a job, with or without reasonable accommodation, in order to be protected from discrimination. 

Courts have historically considered presence at work an essential job function. This perspective explains why courts during much of the 1990s consistently ruled against telework as a reasonable accommodation.

In 1991, the Eastern District of Virginia held that reasonably regular and predictable attendance is necessary for most jobs in Walders v. Garrett. Three years later, the Court of Appeals for the District of Columbia held that an essential function of any government job is an ability to appear for work in Carr v. Reno. Also in 1994, the Court of Appeals for the Federal Circuit held that an employee who cannot meet a job’s attendance requirements cannot be considered a “qualified” individual protected by the ADA in Carr v. Reno. That same year, the Central District of California held that a disabled employee cannot establish that she can perform essential functions of job without proving predictable and reliable level of attendance in Kennedy v. Applause, Inc. In these decisions and others, the courts clearly disfavored teleworking as a reasonable accommodation.

By the late-1990s, however, changes to policies and new laws indicated that teleworking was more accepted and even a beneficial addition to the workplace. This change helped promote teleworking as a reasonable accommodation. The U.S. Equal Employment Opportunity Commission issued Enforcement Guidance on Reasonable Accommodations and Undue Hardship under the ADA in 1999. The Enforcement Guidance, which was revised in 2002, stated that allowing an individual with a disability to work at home may be a reasonable accommodation.

In February 2003, the EEOC issued a Telework Fact Sheet, which states that telework may be a valuable tool for employers to boost morale and productivity. It also reemphasized the agency’s stance that working remotely may be a reasonable accommodation. The fact sheet also says that although the ADA does not require an employer to offer a telework program, the employer must allow employees with disabilities the opportunity to participate in a telework program if one is offered to other employees. 

The federal government further legitimized telework’s role in the workplace with the Telework Enhancement Act of 2010. The act requires the head of every executive agency to establish a teleworking policy, determine the eligibility of all employees to participate in telework, and notify employees of their eligibility to telework.

Earlier this year, the 6th U.S. Circuit Court of Appeals stated that attendance is no longer synonymous with physical presence in the workplace in EEOC v. Ford Motor Co. The court’s decision went so far as to suggest that under the ADA, an employer may be required to permit telecommuting as a “reasonable accommodation” even if attendance is an essential job function. Importantly, the court did not follow its own 1997 decision which held that telecommuting would only be reasonable in an unusual case. The court reasoned that the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.

EEOC guidelines, the Telework Enhancement Act, and the Ford Motor decision have laid the foundation for teleworking as a viable accommodation option, and it is likely other courts will agree that teleworking may be a suitable reasonable accommodation. Furthermore, several recent cases that analyzed the ADA’s “undue hardship” standard will likely support future arguments that teleworking is not an undue hardship.

For example, a recent 4th U.S. Circuit Court of Appeals case involving a failure-to-accommodate claim discussed a district court’s decision that an employee’s request to work remotely temporarily was unreasonable. The plaintiff did not challenge the district court’s decision, but the 4th Circuit nonetheless reminded employers that “an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in an ‘interactive process’ to arrive at a suitable accommodation collaboratively with the employee” in Summers v. Altarum Inst. Corp.

The 4th Circuit’s reminder highlights an employer’s duty to engage in the interactive process with an employee even if the employer believes that an accommodation, such as teleworking, is unreasonable.  The 4th Circuit’s decision differs from earlier decisions because it did not simply find that a telework accommodation was unreasonable.

In an August 2014 decision from the U.S. Court of Appeals for the District of Columbia, the court held that a work arrangement in which an employee sought flexibility in her working hours may be a reasonable accommodation. Citing the Ford Motor decision, the court stated that technological advances and the evolving nature of the workplace, have contributed to facilitate more reasonable accommodation options available to employers.

Importantly, that decision disagreed with the defendants and the lower court, which held that the ability to work a regular and predictable schedule is an essential element of any job. The court also disagreed with a previous decision which held that “[p]hysical presence at or by a specific time is not, as a matter of law, an essential function of all employment.” Instead, the court held that the proper analysis is a “penetrating factual analysis” to determine whether a “rigid on-site schedule is an essential function of the job in question.”

It is important for employers and employees to understand that courts are being more flexible in determining what constitutes a reasonable accommodation. It is likely that other courts will adopt similar, more flexible views on reasonable accommodations and even hold that teleworking is a viable reasonable accommodation.

R. Scott Oswald is managing principal and David L. Scher is principal of the Employment Law Group PC. To comment, email editors@workforce.com.

http://www.workforce.com/articles/20917-no-longer-a-remote-possibility

Telecommuting becomes reality for many Tampa Bay workers

Posted: Nov 13, 2014 2:29 AM CST

Updated: Dec 11, 2014 2:29 AM CST

By Gayle Guyardo

 

PINELLAS COUNTY, FL (WFLA) -

What if you never have to sit in bumper-to-bumper traffic commuting to and from work? It's a reality for millions of American workers who are part of the growing trend of telecommuting.

"By the year 2020, 50 percent of the workforce will telecommute." said Sara Sutton, the CEO and Founder of FlexJobs.com.

"That doesn't mean everyone will work at home 100 percent of the time", Sutton explained. "But, more companies will allow workers to do at least part of their jobs remotely."

FlexJobs is an online service that  hand-screens legitimate job opportunities for people who want to telecommute.

"There were days just to get from her to Pinellas, it would take two hours. If there was an accident on the Veterans Expressway, or the Howard Frankland Bridge, forget it, you're done," said Melissa Huston who found a job with DELL through FlexJobs.

"A lot of people thought I was crazy. They were like good luck with that," said Huston. 

The young working mom wanted to work from home to put an end to 3-hour daily commutes to and from work, and spending thousands of dollars every year on gas and tolls.

Turns out Huston wasn't crazy, she found what she calls her 'dream job'. 

"It actually strangely enough paid significantly more than what I was making working locally and commuting," she said.

At one time in history work from home jobs had a negative stigma attached to the idea. After the 2008 crash in the economy, more and more major firms started offering telecommuting jobs to cut down on the cost of employment.

"There are far more job opportunities in a wide variety of career areas entry level to executive then people generally think." said Sutton. She and her team find hundreds of job opportunities, and once they are vetted as legitimate, the opportunities are then posted Flexsjobs.

From careers in health care or finance, to a job as a virtual golf instructor, Sutton believes people might be surprised about the job opportunities available.

Copyright WFLA 2014. All rights reserved.

http://www.wfla.com/story/27372100/telecommuting-becomes-reality-for-many-tampa-bay-workers

Is Telecommuting a Trend in Reverse?

Over 3 million people telecommute for their jobs. But some big corporations, such as Yahoo and Best Buy, are bucking the trend. Is telecommuting a trend in reverse? Or has the train already left the station?

Tonight at 7 on the Philadelphia CNN-News affiliate WFMZ-TV, "The American Law Journal" presents "Telecommuting: A Trend in Reverse?" Joining host Christopher Naughton are employer's counsel Anthony Haller of Blank Rome, employee's attorney Marc Rapaport of New York's Rapaport Law Firm and employment law attorney and human resources specialist Robin Bond of Transition Strategies LLC.

"The subtext to what Yahoo and Best Buy have done is that there are all sorts of hidden problems and tricky legal issues for working at home," Haller said. "On top of that, collaboration in the workplace works better face-to-face." But Rapaport countered, "If the employer has opened the door [for others] and my client is either denied that right or has had it taken away, that's a catalyst for litigation."

The program includes a tongue-in-cheek video of the pitfalls of allowing employees to telecommute.

"I have three words of advice for companies that permit telecommuting," Bond stated. "Keystroke monitoring technology."

"The American Law Journal" airs Monday nights at 7 on the CNN-News affiliate for Philadelphia, WFMZ-TV 69. Programs are archived on YouTube at www.YouTube.com/LawJournalTV. The program is on holiday hiatus until Jan. 19. •

Read more: http://www.thelegalintelligencer.com/id=1202678932120/Is-Telecommuting-a-Trend-in-Reverse-on-Mondays-The-American-Law-Journal#ixzz3LqKtPMwJ

Telecommuting becomes reality for many Tampa Bay workers

Posted: Nov 13, 2014 2:29 AM CSTUpdated: Dec 11, 2014 2:29 AM CST

By Gayle Guyardo

CONNECT

 

PINELLAS COUNTY, FL (WFLA) -

What if you never have to sit in bumper-to-bumper traffic commuting to and from work? It's a reality for millions of American workers who are part of the growing trend of telecommuting.

"By the year 2020, 50 percent of the workforce will telecommute." said Sara Sutton, the CEO and Founder of FlexJobs.com.

"That doesn't mean everyone will work at home 100 percent of the time", Sutton explained. "But, more companies will allow workers to do at least part of their jobs remotely."

FlexJobs is an online service that  hand-screens legitimate job opportunities for people who want to telecommute.

"There were days just to get from her to Pinellas, it would take two hours. If there was an accident on the Veterans Expressway, or the Howard Frankland Bridge, forget it, you're done," said Melissa Huston who found a job with DELL through FlexJobs.

"A lot of people thought I was crazy. They were like good luck with that," said Huston. 

The young working mom wanted to work from home to put an end to 3-hour daily commutes to and from work, and spending thousands of dollars every year on gas and tolls.

Turns out Huston wasn't crazy, she found what she calls her 'dream job'. 

"It actually strangely enough paid significantly more than what I was making working locally and commuting," she said.

At one time in history work from home jobs had a negative stigma attached to the idea. After the 2008 crash in the economy, more and more major firms started offering telecommuting jobs to cut down on the cost of employment.

"There are far more job opportunities in a wide variety of career areas entry level to executive then people generally think." said Sutton. She and her team find hundreds of job opportunities, and once they are vetted as legitimate, the opportunities are then posted Flexsjobs.

From careers in health care or finance, to a job as a virtual golf instructor, Sutton believes people might be surprised about the job opportunities available.

Copyright WFLA 2014. All rights reserved.

http://www.wfla.com/story/27372100/telecommuting-becomes-reality-for-many-tampa-bay-workers

Popular benefit: Work from home

BY CARA S. TRAGER

DECEMBER 10, 2014 3:21 P.M.

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The father of two young children, Alex Benke doesn't sweat when the family's nanny needs to cut out early or his kids have a weekday doctor's appointment. For such times, which can add up to as many as four days a month, he skips his one-hour and 20-minute commute and works from his suburban New Jersey home 25 miles away from his Manhattan office.

"My wife also works in the city, and telecommuting gives me flexibility," said Mr. Benke, a product manager and certified financial planner at Betterment, an investment concern that ranks No. 25 onCrain's 100 Best Places to Work in New York City.

It's been nearly two years since Yahoo CEO Marissa Mayer famously (and controversially) called her company's legions of remote workers back to their desks, blaming telecommuting for hampering employee collaboration and innovation at the Internet company. Nonetheless, the work-from-home perk is one of the most popular benefits among the 100 Best Places to Work in New York City, with nearly three-quarters granting employees the über-convenience of working in their bathrobes at the kitchen table.

Across the country, the telecommuter population grew 79% between 2005 and 2012, to an estimated 3.3 million employed people now regarding their home as their primary place of work, according to an analysis of U.S. Census Bureau data by consultancy Global Workplace Analytics of San Diego.

While most of the Best Places to Work in New York City offer the amenity to recruit and retain workers, their telecommuting practices vary widely, from offering the perk on an as-needed basis to granting employees five days annually to use their living quarters as their weekday work space.

"Work-life balance is incredibly important, and happy employees are productive employees," said Eoin Ryan, senior vice president of investor relations and corporate communications at AOL, which logged in as No. 62 on Crain's list. The Internet giant, with revenue last year of $2.3 billion, offers telecommuting on a case-by-case basis, depending on such factors as the employee's projects.

What's more, worker productivity is typically higher at home than in the office. "Modern offices are basically interruption factories, and if you're present, all kinds of people are asking for two minutes of your times that turns into 15 minutes," said Betterment's Mr. Benke, who sequesters himself on the second-floor of his house, away from the kids and their nanny.

The perk also can save money—for both employer and employee.

Workers who regularly telecommute toil from home an average 2.4 days a week, according to Global Workplace Analytics. That, in turn, saves companies about $11,000 annually per telecommuter in reduced real estate, turnover and absenteeism costs. For employees, telecommuting translates into a yearly savings of $2,000 to $5,000 on wardrobe, commuting and food.

Before the most recent recession, the desire to hire the best people drove telecommuting practices, said Kate Lister, president of Global Workplace Analytics. During the recession, the need to cut costs was the rationale behind the perk. "The pendulum has swung back now to hiring the best people," Ms. Lister said.

That's the sentiment at Noom Inc., a health technology operation that ranks No. 76 on Crain's list.

"To get the talent, you have to look everywhere, including outside New York City, and if we find someone we really like, we're willing to go to lengths to get them to join our company," said Adam Fawer, chief operating officer of the six-year-old startup, which generated $1.3 million in revenues last year but has yet to become profitable.

Telecommuting can be a slippery slope, though. Spouses, children and others within earshot of phone conversations can inadvertently lead to security breaches. And remote-access technologies, including Skype and the cloud, can only do so much in creating a cohesive workforce.

"You have to have office time to be successful," insisted Kimberly Mansfield, people operations manager at technology firm Elite SEM, No. 2 on Crain's list. The firm had revenue of $13.8 million last year. Most of its 31 city employees occasionally stay home to work, but about a dozen consistently telecommute one to three days a week.

Some of the 100 Best Places to Work in New York City head off the telecommuting challenges by requiring employees to attend company and client meetings, as well as to assume responsibility for knowing when their onsite presence is critical. Still, companies like digital media shop Carrot Creative decline to offer the perk, citing concerns that telecommuting could jeopardize corporate culture and impede employee collaboration.

"We're a company with young people who are very competitive, and people push each other and feed off the energy of others," said Carrot Creative co-founder and Chief Executive Mike Germano.

The nine-year-old outfit, No. 65 on Crain's list, had considered offering a telecommuting option to four top-notch job candidates who didn't want to work in the city. But in the end, Mr. Germano saw more problems than benefits.

"It felt as if it would take more management time, you wouldn't get the spontaneous creativity, and it would slow down production," he said.

The four got jobs elsewhere. The firm, which is profitable but declined to disclose 2013 revenue figures, was acquired last year by Vice Media.

Web-design and e-commerce firm Corra, No. 74 on Crain's list, in September tweaked its telecommuting policy to mandate Tuesdays and Thursdays as the only two days every week that all employees can work remotely. In the past, employees were permitted to work at home on any two nonconsecutive days each week.

"People weren't together enough—it was basically me in the office, and interview candidates would be coming in and no one was there," said Ron Bongo, chief executive of the profitable firm, which declined to disclose 2013 revenue figures. "Then, clients would be coming in, and I had to tell everyone to come in, too."

http://www.crainsnewyork.com/article/20141210/SMALLBIZ/141219981/popular-benefit-work-from-home

Staples Survey Shows Purchasing Departments Need to Keep Pace with Rise in Telecommuting

FRAMINGHAM, Mass., Nov 12, 2014 (BUSINESS WIRE) -- The overwhelming majority of employees believe telecommuting is good for both themselves and their company, but most organizations are not budgeting appropriately for telecommuters, according to a recent survey of procurement officers by Staples Advantage, the business-to-business division of Staples, Inc.

Two-thirds of those who responded say they do not take telecommuters into account when planning their organization’s purchasing budget. The result is a lack of consistency in telecommuting purchasing, including which products are purchased, who is purchasing them and how much is being spent.

“For many companies and employees, telecommuting makes good business sense,” said Neil Ringel, Executive Vice President, Staples Advantage. “However, if organizations don’t budget accordingly and provide appropriate oversight, there is significant risk for rogue spending and inconsistencies in the tools provided to telecommuters. Organizations can reduce their overall spend with up-front planning, streamlined purchasing and procurement oversight.”

More than half of the procurement professionals surveyed – 59 percent – purchase products for telecommuters, while 33 percent say telecommuters purchase products out of their own pocket. Less than half of those procurement professionals work for companies that provide reimbursement.

Telecommuters most often request office supplies (44 percent), technology products such as keyboards and monitors (17 percent), Internet and phone service (16 percent). They also request IT services, furniture, copy and print services and cleaning supplies. There is an opportunity for procurement to negotiate better prices for goods and services in these categories to maximize savings.

To maintain consistency and oversight of telecommuter purchasing, procurement professionals should consider the following tips:

• Ensure all telecommuter purchases are routed through procurement.
• Provide a budget for telecommuters to purchase needed items and services.
• Establish standard catalogs or product lists that are pre-approved for telecommuters.
• Provide standard start-up kits of items and services when employees begin telecommuting.
• Have a clear understanding of their company’s pool of telecommuters, recognizing that the percentage is likely to rise, which means they should plan for and budget accordingly.
• Develop comprehensive reporting to better measure expenses against budgets.

Staples Advantage helps organizations consolidate their procurement processes across the organization. Measures commonly taken include collaborative budget building, educating on purchasing trends, creating custom catalogs and core item lists, all of which empower organizations to ensure consistency and gain full visibility into their expenditures. To learn more about how to purchase for your organization, please visit: https://www.staplesadvantage.com/shop/sahome?storeId=10101

About the survey 
Staples Advantage conducted a survey of more than 200 chief procurement officers, procurement vice presidents, directors, managers and category managers representing a variety of industries – manufacturing, finance, education, government, healthcare, hospitality, insurance, retail, and utilities. Full executive summary with more detailed findings can be downloaded here.

About Staples Advantage 
Staples Advantage, the business-to-business division of Staples, Inc. SPLS, +2.46%serves organizations of 20 or more employees up to the Fortune 1000, helping them make more happen with more products, greater cost savings and improved ordering efficiencies. Staples Advantage provides its customers, including global businesses, local, state and federal government, healthcare organizations and educational institutions, with a one source solution featuring comprehensive products and services like office supplies, technology, printing, promotional products, furniture and facility supplies, along with a customized level of account support and best-in-class customer service. More information is available atwww.staplesadvantage.com.

SOURCE: Staples Advantage

Staples Advantage 
Shweta Agarwal, 508-253-8249 
shweta.agarwal@staples.com

Copyright Business Wire 2014

http://www.marketwatch.com/story/staples-survey-shows-purchasing-departments-need-to-keep-pace-with-rise-in-telecommuting-2014-11-12?reflink=MW_news_stmp