• If an employee requests remote work as a reasonable accommodation related to a disability, follow the interactive process. For more information, see Telecommuting as a Reasonable Accommodation..

Telecommuting arrangements generate a number of legal issues relating to federal and state wage and hour laws:

• With the worker off-site, it becomes difficult to track time worked, overtime liability, compliance with meal and rest periods and work off the clock. You must ensure compliance with federal and state wage and hour laws. For more information, see Pay & Scheduling.
• Telecommuting arrangements raise questions about federal and state workplace safety laws. Although you don’t control the worker’s premises and workstation, you do bear responsibility for the worker’s safety. In addition, injuries that arise out of and in the course of performing the job are compensable under workers’ compensation. For more information, see Workers’ Compensation.”
• Confidentiality and privacy issues may arise.

Establishing a Telecommuting Policy

Adopt a systematic approach to telecommuting requests, perhaps by creating a standard request form that you can use to track any inequities in the decision-making process. Stay out of the issue of why the employee wants to telecommute altogether, to avoid making a value judgment about whether one employee’s new baby is more important than another employee’s plans to go to law school at night. Keep disability accommodation issues in mind.

Although the following may not apply to all employers, you should at least consider these issues when developing your telecommuting policy:

• The criteria for assessing whether an employee can work remotely.
• The manner in which home office expenses and expenses for travel and parking at the company will be handled.
• How managers are expected to manage productivity and adherence to company policies such as drug, alcohol and dress policies.
• The logistics for supporting telecommuters needs, such as support staff, office supplies and equipment.
• The logistics for supporting telecommuters when they visit the company. For example, office space, parking spots, and the use of support staff.
• Which meetings will require physical attendance by telecommuters and which can be managed by phone or over the Internet.
• The need for special policies for telecommuters, such as requiring them to abstain from using their children to help with work tasks, as this may be considered a violation of child labor laws.
• How expenses for moving company equipment will be managed if the telecommuter moves.
• How the termination of telecommuters will be managed, especially the return of company equipment and payment of final wages.
• How to handle off-the-clock work issues, if the worker is nonexempt.

Establish policies to deal with confidentiality and privacy issues, including monitoring how the worker:

• Uses email and the Internet
• Accesses company information
• Protects company secrets at home or other remote locations

Address the applicability of the company’s computer and phone usage policies to telecommuters or the need for amended policies for telecommuters only.

• In your policy, include a reminder that users should have no expectation of privacy or confidentiality when using work-related computer or Internet resources, regardless of where data is stored — on your servers or a third-party server.

• CalChamber’s Employee Handbook Creator ® can help you easily create an employee handbook that contains this policy. Purchase at the CalChamber store.

Employees Located in Other Regions

If an employee works outside the state in which the employer’s company office is located, the law in the state in which the employee works is, in most cases, the law that covers them. For example, an employee in Nevada working at home for an employer headquartered in California is generally governed by Nevada employment laws. However, if the out-of-state employee travels to California to work for a California based employer, California’s overtime laws apply to any work for a full day or week.1 For more information, see “Nonresidents Entitled to Overtime for Work in California” in Understanding Basic Overtime Requirements.

Similarly, for employees outside the city or county where the company’s office is located, make sure you monitor and comply with local employment-related ordinances in the employee’s location. For example, many cities and counties have enacted minimum wage and sick leave ordinances that could affect employees working in a remote location.

• Visit HRCalifornia’s Local Ordinances section for detailed information on local employment-related ordinances in California, including minimum wage and sick leave ordinances.

1. Sullivan v. Oracle Corporation, 51 Cal. 4th 1191 (2011)