Telecommuting Agreements Explained: What Employers and Employees Need to Know

Telecommuting Agreements 101

As remote work becomes more common, employers are finding telecommuting agreements or telecommuting policies to be valuable tools that set clear expectations for employees who work partially or fully outside the office. Telecommuting agreements outline the rights and responsibilities of employers and employees when it comes to remote work. At a minimum, when drafting a policy or agreement, employers should consider the following provisions:
· Eligibility and Scope: which employees will be eligible to telecommute, with what frequency, and for how long; any possibility of terminating a telecommuting arrangement, and what happens at the termination of a telecommuting arrangement.
· Work Schedule: when and for how long employees can work remotely, including specific work hours and break times.
· Equipment , Software and Technology: what employees need to work remotely (e.g., computer, phone, internet access); who owns the equipment and whether the equipment must be returned to the employer upon the end of the telecommuting period.
· Data Security, Confidentiality, Privacy & Costs: how to protect data, confidential information, and privacy when employees work outside of the office; who is responsible for the costs associated with telecommuting, including printing, mileage, and other expenses.
Other questions to keep in mind when drafting a telecommuting agreement or policy are state-specific. For example, some states require that employees be provided with a workstation reimbursement policy or that the employer obtain written consent before viewing a non-Customer Electronic Device.

Essential Elements of a Telecommuting Agreement

A telecommuting agreement should address employers’ legitimate business interests, and also the employer’s compliance with applicable state labor laws governing telecommuting arrangements. For example, the agreement should provide for compensability of travel, rest breaks, expense reimbursements for the use of personal cell or other devices, and how the employee will track hours worked. There should also be a confidentiality provision, and a statement that the telecommuter may work more hours than allowed by applicable wage-and-hour laws if they choose to do so because such an understanding might otherwise be implied if the employer imposes no hours limitations.
Try to draft the agreement so that the relationship between the company and the remote employee is as clear and unambiguous as possible, without hampering the business. The length of the initial period of telecommuting should be clearly set forth. Indefinite agreements often result in litigation. At the least, the agreement should be reviewed annually or semi-annually for purposes of revisiting such employment terms and conditions.
Elements that a business should include in a telecommuting policy: Work schedule, start and end of the work day include any lunch and rest breaks, notifications for lateness or absences; communication expectations such as what and how often the employee will communicate with supervisors and managers; data security which identifies procedures to protect the employer’s computer network. These typically include firewall and virus protection, limiting and/or monitoring employee computer network access including to instant messaging and downloading capabilities — think personal flash drives; and conducting background checks on employees, including searches of their electronic databases and/or physical office space, where feasible.

Positive Aspects of a Telecommuting Agreement

The ability to work from home (or at a comfortable location away from the office) offers some benefits to both employers and employees. For the employer, the increase in telecommuters is appealing as organizations look for ways to balance profitability with reduced overhead costs. For an employee, the flexibility to work when and where they choose provides greater opportunities and values for their work. Whether it’s the opportunity to spend more time with family, avoid the high cost of commuting or require less time away from work for legitimate reasons like care responsibilities, more companies are able to attract and retain talent with attractive telecommuting policies.
An effective telecommuting agreement can be an excellent tool to attract top talent and increase productivity while reducing costs for employers and meeting the needs of employees. These agreements establish telecommuting eligibility, identify responsibilities and set out the standards of performance for work done offsite. By establishing clear parameters before the work begins, the telecommuting agreement can mitigate the risks for employers while providing the flexibility that employees appreciate.

Working Through Legalities of a Telecommuting Agreement

When drafting a telecommuting agreement, an employer must carefully consider its statutory obligations (i.e., occupational health and safety legislation, workers’ compensation legislation, duty to accommodate the employee’s disability needs, etc.) as well as case law that has addressed issues such as whether an employer can unilaterally change the terms of employment. Courts and arbitrators have consistently held that an employer’s decision to unilaterally change an employee’s hours of work or work location, absent specific language in a collective agreement allowing for this, constitutes a management right which can be abridged only for "business or economic necessity". The appropriate remedy for a finding of bad faith or bad faith policies or practices is generally a set period of damages or other compensation.
There are various statutory requirements that employees and employers must meet when negotiating and drafting a telecommuting agreement. For example, the Occupational Health and Safety Act (OHSA) imposes a number of obligations on employers who require employees to work at locations other than their "fixed or home base". In addition, most provinces and territories have workers’ compensation statutes that apply to employees working from home. These statutes generally require an employer to report accidents, bodily injury and fatalities, even when the accident occurs at the employee’s home. The employer cannot assume that their workers’ compensation insurance will cover irregular risks. Rather, it must ensure the risks associated with the telecommuting arrangement are covered by workers’ compensation insurance.
In addition, the Canada Labour Code imposes a general duty on employers to accommodate an employee’s disabilities. An employer may be required to provide additional accommodation if the employee requires telecommuting as a form of accommodation. Accommodation, however, also includes the duty to remove discriminatory rules, practices and barriers, which may create a negative perception of telecommuting such as considering all telecommuters less productive or less committed to their jobs. Further, when a job is posted, the most competitive candidates are traditionally invited to interview for the position. Applicants with telecommuting experience have "set themselves apart" from other applicants, which may promote a negative perception of telecommuters. Although I can find no case law directly related to this issue, in another context, the Supreme Court of Canada has ruled that making job interviews available to a "long list" of candidates rather than "short list" is a form of reasonable accommodation, not an undue hardship.

Telecommuting Tough Spots

Employees who work from home are expensive for employers. First, significant amounts of money are paid to get the right computer, phone and other equipment into an employee’s home. Then, the employer has to pay for the ongoing costs of maintaining the equipment. In addition, there are the ongoing issues of IT and organizational support which employees have difficulty accessing and filing their time records.
There is lack of oversight as a complaint about working from home is that there is no one watching so workers don’t work. Yet the reality of the work at home situation is that even when being watched, many workers don’t work and take long lunch breaks and many breaks listening to the radio and the self-improvement guru’s from 9 a.m. until 4 p.m. or later.
Many employees are not motivated to actually work from home in the long term. There are many issues that must be resolved before telecommuting can be successful. First of all, many companies and supervisors do not understand that a telecommuter is an employee and must be treated the same way as any other employee. They do not hold them to the same standards as any other employee. This incomplete treatment of the teleworker removes any motivation for the teleworker to work, as they are not motivated to succeed by anything other than the desire to keep their job.
Second, many employees are not good at working away from their supervisor. Many employees do not enjoy the additional responsibility of resolving issues themselves . They want their supervisors immediately available so that all disputes can be resolved in their favor. Employees want everything their own way and do not consider the company’s interest as important. Many employees will sit for periods of hours on end and not talk to anyone. However, some jobs work most effectively when employees are in constant communication with each other. Employees who spend four hours a day on the telephone don’t want to spend eight hours on the telephone at work. Some employees need periods of time where they cannot be accessed but want the ability to pick up the phone at other times during the day to resolve business issues.
The typical solution to the lack of communication among remote workers is to conduct regular video conferences. These conferences can keep everyone informed and focused. There should be agenda items for discussion which can be published in advance. At these meetings the supervisor can go through the agenda items and assign projects to each worker. The workers can then all sign on to their computers, and can talk to each other and through a two-way video feed can talk to the supervisor. The best thing about the meetings is that after the meeting, the employees can continue to speak to one another for updates. Conversations can be had during the day. If the meeting has gone long, then employees can sign off. If they have to watch another meeting, they can sign off and sign on to the second meeting to resolve issues between both meetings.

Tailoring a Telecommuting Agreement

To avoid the pitfalls associated with telecommuting, employers should have a telecommuting agreement with employees who are authorized to work from home. Such agreements should be well written, concise and specific.
A telecommuting policy or agreement should differ based upon the nature of the work to be performed and the industry of the employer. For example, a telecommuting agreement for employees in the manufacturing sector, which includes jobs such as welders and machinists, will differ from that of a healthcare provider, or financial analyst. The telecommuting policy or agreement should tailored to the needs of the business and the specific job functions being defined as telecommuting positions. It should address various considerations such as office security, proper maintenance of work equipment, availability and communication procedures. The agreement should define and describe the telecommuting schedule the employee has requested and/or which the employer determines is the best fit for the business and the employee’s job function. For example, the employer may allow certain employees to telecommute between the hours of 9:00 a.m. and 5:00 p.m., while other employees may only be permitted to telecommute during evening hours or because they perform essential duties on a daily basis, are not allowed to telecommute at all.
While the focus of this article is on employers, telecommuters should review and understand the policy or agreement since it will also define employees’ duties, responsibilities, and privileges while they are working from home.
Finally, the telecommuting policy or agreement should be reviewed periodically to ensure that the policy remains relevant to the business of the employer. The agreement should include language permitting employers to modify the agreement as frequently as necessary. This will ensure that the agreement remains effective throughout its terms and beyond.

Upcoming Trends in Telecommuting Agreements

As technology continues to advance and work cultures evolve, telecommuting agreements are likely to become more common and complex. The growing trend of remote work is not limited to Canada and the US. Almost every employer is considering telecommuting in some form, whether internationally or locally, hence the future likely has a mix of different work arrangements from which employers can choose. One such arrangement, for example, is the hub-and-spoke model. This would allow companies to establish one primary local office in a given jurisdiction, and to hire employees (or consultants) who work remotely from various locations without the threat of the imposition of corporate taxes on the company at each of those locations . Another possibility is establishing a global employment company specifically for the purpose of hiring and managing employees in various jurisdictions around the world. In this model, telecommuting agreements may be standard among employees who are hired through a single entity, regardless of the jurisdiction in which they work. Changes in technology and immigration laws will continue to play a significant role in shaping telecommuting agreements in the future. We expect to see, for example, the increased use of biometric technology, not only for such things as clearing security to enter a workplace, but to track time worked or behaviors of employees while at work in order to ensure safety and productivity in a telecommuting arrangement.