I work for a company that sometimes allows employees to work from home. However, several of my co-workers have been told that they cannot work from home if they have children that are home with them. Some of my co-workers are very upset by this and feel they are being singled out because they have young children. Is this considered discrimination in the workplace?
By definition, telecommuting is when an employee works from home. The idea is, the employee is eliminating their daily commute to the office. Telecommuting is gaining popularity for several reasons: companies do not have to maintain expensive office space and employees don’t have long, and possibly expensive commutes to work.
But as evidenced by today’s reader note, telecommuting doesn’t come without challenges. To help us understand telecommuting better, I asked our friend Heather Bussing if she would share her expertise. Lucky for us, she said yes. Heather is an employment attorney and regular contributor at HR Examiner. She’s shared her expertise with us before. This post is one of my favorites.
Let’s start off talking about telecommuting in general. What are some legal issues that companies need to consider when allowing employees to work from home?
[Heather] In some ways the legal issues get easier because the face-to-face interactions are reduced. Communications tend to be recorded in email, chat, or other written form, so it’s often clearer what is going on when problems arise.
On the flip side, there is less supervision, so it can be harder to deal with performance and time-worked issues.
Basically, the legal issues are the same no matter where your employees work.
Can employers tell employees they cannot work from home if they have children in the house? Why or why not?
[Heather] Employers cannot make a rule that an employee who has children at home cannot work from home. Such a rule treats employees with small children differently than those who don’t have kids or whose kids are not home during the work day. Title VII of the Civil Rights Act protects employees from discrimination based on gender, pregnancy, marital status, whether you have children, and gender stereotypes. This is sometimes called Family Responsibilities Discrimination.
So if an employer allows employees to work from home, then it cannot preclude employees from having the same working benefits and conditions simply because they have children.
The reader didn’t ask this, but could the employer’s request also extend to parents that might live with the employee? Or a spouse who also works from home?
[Heather] Again, this gets into marital status discrimination regarding rules about spouses. So employers can’t make workplace rules that depend on whether or not someone has a spouse (working at home or otherwise).
With having parents at home, it’s a little trickier since that doesn’t really relate to having children or being married.
The Family and Medical Leave Act (FMLA) would apply if the employee is caring for a parent, but that generally relates to leave of absences rather than work.
Under some state laws, like California, you cannot discipline or fire employees for off-duty conduct. Rules based on whom you live with would probably fall into that category and be illegal.
Mostly, it’s just a bad idea. Either the employer trusts the employee to work from home, manage potential distractions, and get the work done, or not. Employers should deal with this issue from a performance stand point rather than trying to manage an employee’s home work environment. If the employee isn’t getting their work done, require them to work in the office or fire them based on performance, not the people they live with.
If an employer has different rules or guidelines for employees who have children, is that considered discrimination? Why or why not?
[Heather] Yes. Under both state and federal discrimination law, an employer cannot make employment decisions – hiring, firing, conditions of employment, discipline, perks, opportunities, based on whether someone is married or has children. It is gender, marital status, and family status discrimination.
Is there anything an employee can do to convince an employer that their children will not compromise the quality of their work?
[Heather] Employers who believe that employees cannot be trusted to get their work done from home and who think they are entitled to dictate what employees do at home, even when working, don’t understand how to effectively manage employees or discrimination laws.
A reasonable approach would be for the employee to ask for a trial period to show that she can accomplish the work from home. But I doubt an employer who is making these kinds of rules would be fair or open to believing the results, even if they were outstanding.
Many thanks to Heather for being so willing to share her experience with us. While telecommuting might look easy to implement – simply allow employees to work from home – it’s important that companies do their homework to make sure they are creating a win-win for everyone.
Image courtesy of Sharlyn Lauby2